Bombay High Court
Shrawani D/O Subhash Shinde Minor U/G Of ... vs The State Of Maharashtra Rural ... on 15 October, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, M. M. Sathaye
2024:BHC-AS:41406-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4841 OF 2024
Shrawani D/o Subhash Shinde
Minor u/g. Of maternal grand father
Gorakh Baburao Surywanshi ...Petitioner
Versus
The State Of Maharashtra
Rural Development Dept And Ors. ...Respondents
AND
WRIT PETITION NO. 4842 OF 2024
Yogita W/o Late Dattatray Vitthal Ahire ...Petitioner
Versus
The State Of Maharashtra
Thr. General Administration Dept And Ors. ...Respondents
...
Mr. Sushant C. Yeramwar, Advocate for the Petitioner.
Mr. Ashwin R. Kapadnis, Advocate for the Respondent Nos.2
and 3 in both Petitions.
Mr. B.V. Samant, Addl. G.P. a/w Ms. Tanu N. Bhatia, AGP for
Respondent No.1.
Mr. B.V. Samant, Addl. G.P. a/w Ms. Priyanka Chavan, AGP for
Respondent No.1 .
...
PALLAVI
MAHENDRA CORAM : RAVINDRA V. GHUGE
WARGAONKAR
&
Digitally signed by
PALLAVI MAHENDRA
WARGAONKAR
M.M. SATHAYE, JJ.
Date: 2024.10.18
14:58:24 +0530
DATE :- 15th OCTOBER, 2024
ORAL JUDGMENT (Per : Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard
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finally by the consent of the parties.
2. In the first Petition filed by Shrawani, the bread
earner was her mother who has passed away. In the second
Petition filed by Yogita, her husband has passed away. There is
no dispute that both these deceased employees were selected and
appointed on posts which were reserved for the backward
categories. They claim to belong to particular backward
categories and their applications for seeking validity certificates
from the Competent Authorities, were pending. Since both these
employees passed away while in service, the Competent
Committees concluded that there is no purpose in deciding their
claims and the proceedings were disposed off. It is undisputed
that both these deceased employees had put in qualifying service
for pension and were otherwise entitled for retiral benefits.
3. The respective employers have taken a stand that the
pensionary and retiral benefits would not be payable to the Legal
Representatives of the respective Petitioners, since the deceased
employees did not tender their validity certificates. Since their
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claims of belonging to particular categories were not validated,
they would not be entitled for such benefits.
4. This Court [Coram: Dipankar Datta, CJ (as his
Lordship then was) and Mangesh S. Patil, J.] delivered a
judgment on 1st October, 2021 in Writ Petition No.4624 of 2021
(Kamlabai w/o. Shaphadu Salve Vs. The State of Maharashtra &
Ors.). The facts of the case were recorded in paragraph 3 in
Kamlabai (supra) as under:-
"3. The teacher was appointed as a primary school
teacher vide order dated 9th April 1992 of the
respondent no. 2. While discharging duty as a
teacher of a school in Avhana, Taluka -
Bhokardan, the teacher passed away on 18th
December 2019 at the age of 47 years due to a
heart attack. The version of the respondents 2 and
3 is that the teacher entered service as a reserved
candidate belonging to Scheduled Tribe on the
basis of the tribe certificate dated 3 rd July 1991
issued by the Executive Magistrate, Sillod, which
was produced by the teacher, and proceedings
before the Scrutiny Committee on the issue of
validation of such tribe certificate are still
pending; therefore, the petitioner is not entitled to
the death gratuity as aforesaid till such time the
said committee pronounces on the validity of the
tribe certificate. It is also the case of the
respondents that the teacher never tried to obtain
validity of the tribe certificate and such certificate
was referred to the Scrutiny Committee for its
decision by the respondent no. 2 vide letter dated
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22nd July 2013. In support of the case that the
teacher was appointed on a reserved vacancy, our
attention has been drawn to a register maintained
by the Zilla Parishad containing particulars of
employees who have been employed from 1982
as well as the particular roster points against
which such appointments have been made. The
teacher, it is shown, was appointed against a
roster point earmarked for the Scheduled Tribe.
Photocopy of the relevant pages of the register are
taken on record, marked Exhibit 'X'. However,
the proceedings could not be taken to its logical
conclusion by the Scrutiny Committee in the
absence of the inquiry report of the relevant
Vigilance Cell with the result that validity of tribe
status of the teacher is still awaited."
5. After considering the provisions applicable in
paragraph 4, the Court dealt with the effect of the judgment
delivered by the Hon'ble Supreme Court in [Chairman and
Managing Director, Food Corporation of India and Ors. Vs.
Jagdish Balaram Bahira and Ors. (2017 (8) SCC 670)] in
paragraph Nos.5, 6 and 7, which read as under :-
"5. The provisions of Act No. XXIII of 2001 in
general and section 10 in particular have been
considered by the Supreme Court in a decision of
recent origin reported in (2017) 8 SCC 670
(Chairman and Managing Director, Food
Corporation of India and others Vs. Jagdish
Balaram Bahira and others).
6. Mr. Patil, learned AGP appearing for the
respondent no. 1 has invited our attention to
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paragraphs 54, 55, 62, 65 and 87 of the said
decision to support his contention that without
validation of the tribe claim of the teacher, the
petitioner is not entitled to any 'financial benefits'
as referred to in sub-section (2) of section 10. The
aforesaid submission of Mr. Patil has been
adopted by Mr. Mahajan, learned advocate for the
respondents 2 and 3.
7. Let us now consider whether in terms of section
Jagdish Balaram Bahira (supra), the action of the
respondents in withholding payment of death
gratuity to the petitioner is justified. Since the
scheme of Act No. XXIII of 2001 has been
discussed in detail by the Supreme Court in
Jagdish Balaram Bahira (supra), it is considered
unnecessary for the purpose of a decision on this
writ petition to repeat the same. However, we
may note that so far it is relevant here, the ratio of
the decision is that if any appointment under the
Government/Public Authority is obtained by an
individual on a vacancy earmarked for a reserved
candidate on the basis of a caste/tribe certificate,
which in terms of the procedure envisaged in Act
No. XXIII of 2001 subsequently turns out to be
false, such individual would have no right to
continue in service and any benefit enjoyed or
derived by virtue of such appointment shall be
withdrawn forthwith. That seems to be the plain
and clear intention of the statute and there can be
no quarrel on this score. We have, however, not
noticed any observation made by the Supreme
Court in Jagdish Balaram Bahira (supra) that the
expression "any other benefits" as employed in
sub-section (1) of section 10 that could be
withdrawn, or, the expression "other financial
benefit" that could be recovered as arrears of land
revenue, would include death gratuity. In fact, the
facts and circumstances giving rise to the
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proceedings before the Supreme Court did not
require a pronouncement in that regard. In a way,
Mr. Patil, learned advocate for the petitioner, is
right in contending that the decision in Jagdish
Balaram Bahira (supra) is distinguishable on facts
and the ratio laid down therein inapplicable to the
facts of the present case."
6. This Court finally allowed the claim of Kamlabai
by recording its conclusions in paragraph Nos.12 to 15, which
read thus :-
"12. The problem can be viewed from one other
perspective. As on date the teacher passed away,
the proceedings before the Scrutiny Committee
initiated on the basis of the reference made by the
respondent no. 2 were in excess of six years old.
It could be so, as submitted, that the Vigilance
Cell has not been able to complete its inquiry and
place a report in that regard before the Scrutiny
Committee. However, the fault or lapse, as the
case may be, cannot be attributed either to the
petitioner or to the teacher. The obvious
consequence of lack of the requisite vigilance
report is that the tribe certificate, which the
petitioner might have produced at the time of
joining service, has not yet been invalidated.
Given this situation, there is no positive material
on the basis of which the respondent no. 2 could
have even inferred that the tribe certificate dated
3rd July 1991 is false. No doubt, Act No. XXIII
of 2001 has been enacted with the noble purpose
of preventing the menace of dishonest people
seeking admission in educational institutions or
public employment on the basis of false
caste/tribe certificates against vacancies reserved
for the socially and backward classes. However,
the law cannot be distorted to such an extent that
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even in cases where the Scrutiny Committee,
constituted under the relevant enactment, takes
abnormally long time to decide the issue of
validity of a caste/tribe certificate, the delay in
conclusion of the proceedings would operate to
the utter detriment and prejudice of a distressed
woman like the petitioner.
13. Pertinently, section 11 of Act No. XXIII of 2001
provides for offences and penalties. Assuming
that the teacher was alive and if indeed the
Scrutiny Committee had invalidated his tribe
certificate, he would have exposed himself to
criminal prosecution. Now that the teacher is no
longer in this world, there can be no prosecution.
However, if at all, it is only the civil consequence
of withdrawal of benefits that would survive. Law
is again well-settled that any action of a public
authority entailing civil consequences must be
preceded by observance of the audi alteram
partem rule. With the death of the teacher, no
action leading to civil consequences can be taken.
This is one other reason why we hold the action
of the respondents to be unsustainable in law.
14. Besides, we must not be oblivious of the realities
of life and the penurious condition that is
ordinarily brought about by sudden demise of the
sole bread earner for the family, in our country. It
is with the terminal benefits that the family of the
bread earner has to survive and if such benefits,
which are aimed at providing succor to the family
members of a deceased individual in times of
distress, are sought to be withheld in the manner
the respondents have taken recourse, the Court
cannot and ought not to be a silent spectator. In
the present case, by denying the amount of 'death
gratuity' to the petitioner, the State would be
failing in its obligations as a welfare state as
provided in Part IV of the Constitution.
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15. For the reasons aforesaid, we find sufficient force
in the petitioner's contention that the action of the
respondents is unjustified. Accordingly, we direct
the respondents to immediately, but not later than
sixty days from date, release in favour of the
petitioner the said amount of Rs.10,53,250/-.
Should there be any remissness to release the said
amount within the time stipulated, the same shall
carry interest @ 9% per annum till such time it is
ultimately released in favour of the petitioner."
7. In similar set of facts, this Court (Coram : Ravindra
V. Ghuge and S.G. Mehare, JJ.) delivered a judgment on 20 th
July, 2021 in Writ Petition No.6485 of 2020 at Aurangabad
(Sunita w/o Late Pradip Thakar Vs. State of Maharashtra and
Ors.) and by placing reliance on a judgment of this Court dated
12th August 2010 delivered in Writ Petition No.3718 of 1994
(Prakash Fulchand Barwal since deceased through his Legal
Heirs Smt. Shobhabai Barwal and others Vs. The State of
Maharashtra and Ors.), allowed the claim of Sunita and directed
the payment of family pension and all retiral benefits as would
have been admissible to the deceased employee had he
superannuated from service. For similar reasons, this Court has
delivered several judgments which are annexed to the Petition
paper-book.
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8. In the light of the above, these Writ Petitions are
allowed in terms of prayer clause (b). Necessary papers for
releasing the family pension payable to the eligible Legal
Representatives shall be moved by the respective employers
within 30 days and it shall be the duty of the employer as well as
the Authorities concerned, to ensure that the arrears of pension
are paid to the eligible Legal Representatives within a period of
90 days from today. Gratuity amounts shall also be paid within a
period of 60 days with admissible statutory interest @ 12% per
annum in the light of the Government Notification issued by the
Government of India, Ministry of Personnel, P.G. & Pensions,
Department of Pension & Pensioners' Welfare, dated 5th October,
1999.
9. Rule is made absolute in the above terms.
10. It is made clear that if any of the eligible Legal
Representatives of the deceased employees, desire to seek
compassionate employment, the law laid down by the Full Bench
of this Court in Om Bhagwanrao Anjanwad vs. State of
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Maharashtra and Anr., (Full Bench), 2022 (4) Mh.L.J. 723,
would be squarely applicable.
(M.M. SATHAYE, J.) (RAVINDRA V. GHUGE, J.)
Pallavi Wargaonkar, PS
