Bombay High Court
Anant Dagadu Garde vs Madhav Yadavrao Shankhpale And Others on 28 February, 2025
2025:BHC-AUG:5798-DB
25.WP-842-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 842 Of 2018
Madhav s/o Yadavrao Shankhpale,
Age : 54 years, Occupation-Service,
R/o. Matoshri, Rajendra Nagar,
Nanded. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Public Works Department,
Mantralaya, Mumbai-32.
2. The Scheduled Tribe Certificate,
Scrutiny Committee at Aurangabad.
3. The Scheduled Tribe Certificate
Scrutiny Committee at Pune. .. Respondents
With
Civil Application No.186 Of 2019
in
Writ Petition No. 842 Of 2018
Anant s/o Dagadu Garde,
Age : 62 years, Occupation-Business & Social-work,
R/o. 407576, Chitra Talkies Road,
Laxmi Niwas, Tq. & Dist. Ahmednagar. .. Applicant
Versus
1. Madhav s/o Yadavrao Shankhpale,
Age : 54 years, Occupation-Service,
R/o. Matoshri, Rajendra Nagar,
Nanded.
2. The State of Maharashtra
Through its Secretary,
Public Works Department,
Mantralaya, Mumbai-32.
[1]
25.WP-842-2018.odt
3. The Scheduled Tribe Certificate,
Scrutiny Committee at Aurangabad.
4. The Scheduled Tribe Certificate
Scrutiny Committee at Pune. .. Respondents
*****
* Mr. Sujeet G. Karlekar, Advocate for the Petitioner.
* Mr. Ameya N. Sabnish, Advocate for Applicant in CA.
* Mr. A.S. Shinde, Addl.GP for Respondents/State.
*****
CORAM : S.G. MEHARE AND
SHAILESH P. BRAHME, JJ..
RESERVED ON : 24th FEBRUARY 2025
PRONOUNCED ON : 28th FEBRUARY 2025
J U D G M E N T (Per Shailesh P. Brahme, J.) :
. Rule. Rule is made returnable forthwith. Heard both sides finally.
2. The Petitioner is challenging order of termination passed by the
Respondent No.1 vide Government Resolution dated 11.01.2018. He was
terminated due to order of invalidation issued by the Scrutiny Committee
and securing the appointment against Scheduled Tribe Category illegally.
3. Petitioner's tribe certificate Thakur Scheduled Tribe was
invalidated by the Scrutiny Committee vide order dated 19.09.1992.
Being aggrieved, he had filed Writ Petition No.2641/1992. It was
dismissed by the High Court on 05.04.2007. Against that, he had
approached Supreme Court. He was permitted to withdraw the petition
with liberty to file for review before High Court vide order dated
25.WP-842-2018.odt
05.09.2008. In pursuance of that order, Application for review was filed
but no orders have been secured.
4. In the meantime, Petitioner was given adhoc promotion to the post
of Executive Engineer vide Government Resolution dated 11.07.2002. He
was reverted to the post of Assistant Engineer by Government Order
dated 11.07.2008. Thereafter by order dated 30.01.2009, he was issued
adhoc promotion on certain conditions. Thereafter he was terminated by
Government Resolution dated 11.01.2018. He attained age of
superannuation in the year 2022.
5. Mr. S.G. Karlekar, learned Counsel for the Petitioner submits that
as impugned order is in blatant violation of principles of natural justice,
petition is maintainable, despite having alternate remedy before
Maharashtra Administrative Tribunal. Without extending any
opportunity of hearing, he was terminated by impugned order which is
perverse. He would further submit that the Respondent No.1 even did
not bother to refer to Government Order dated 11.07.2008 by which he
was reverted in rank as a punishment due to invalidation of his tribe
certificate. Having suffered punishment of reverting the in rank. It is
illegal to again impose punishment of dismissal for the selfsame reason.
Hence the action is against principles of double jeopardy.
6. Petitioner further submits that his services were protected by
executive instructions dated 11.07.2008 and thereafter 30.01.2009.
Overlooking the same, impugned order was issued which amounts to
arbitrariness. It is submitted that judgment of High Court in the matter
of Chairman and Managing Director FCI and Ors. Vs. Jagdish Balaram
Bahira and Ors., cannot be made applicable. He is relying on the
25.WP-842-2018.odt
judgment of Radha Krishan Industries Vs. State of Himachal Pradesh
and Others, (2021) 6 SCC 771 and M/s. Godrej Sara Lee Ltd. Vs. Excise
and Taxation Officer - Cum - Assessing Authority, AIR 2023 SC 781.
7. Per contra, learned AGP submits that impugned action was taken in
pursuance of Section 10 of the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification Of) Caste Certificate Act, 2000. Once there was
invalidation of tribe certificate and Petitioner is found to have usurped
the post in question, his discharge from service is automatic and no
question of extending any opportunity to him arises. It is submitted that
Government Orders dated 11.07.2008 and 30.01.2009 would not create
any right or protect the services of the Petitioner. It is further contended
that the impugned action taken against the Petitioner, is perfectly in-
consonance with the law laid down in the Supreme Court in the matter of
Chairman and Managing Director FCI and Ors. (supra).
8. Petitioner was employee of Public Work Department. He had
remedy to approach Maharashtra Administrative Tribunal against order
of termination. But learned Counsel for the Petitioner has persuaded us
by relying on the judgment of the Supreme Court in the matter of Radha
Krishan Industries (supra), by referring to Paragraph No.27.3 that in case
of violation of principles of natural justice, it is permissible for the High
Court to entertain Writ Petition directly. He would further place reliance
on the judgment of M/s. Godrej Sara Lee Ltd. (supra). We find that there
is substance in the contention of the Petitioner. Considering his grounds
of objection to impugned order of termination, we propose to examine
the matter on merits.
25.WP-842-2018.odt
9. Petitioner's tribe certificate was invalidated by the Scrutiny
Committee and it was confirmed by High Court. Against those
judgments, he had approached the Supreme Court. By order dated
05.09.2008, the Supreme Court permitted him to withdraw SLP with
liberty to approach High Court by filing review petition. Accordingly,
Review Application Stamp No.16565/2009 was preferred. Learned AGP
has informed that no orders are passed and it is still pending. Due to
orders of invalidation, Petitioner was found to be ineligible for the post
of Assistant Engineer which was reserved for Scheduled Tribe Category.
His entry in the service was on the basis of reservation. He was
terminated from the services by invoking powers under Section 10 of the
Act. Respondent was empowered to discharge the Petitioner forthwith
from the employment. For that, no opportunity of hearing is required to
be extended. Neither any inquiry is contemplated for discharging the
services.
10. Respondent No.1 has relied on the judgment of Managing Director
FCI (supra). We have gone through paragraph Nos. 44 to 46 as well as
concluding part of paragraph no.57. Respondent no.1 is justified in
dismissing the Petitioner. He is guilty of fraud on the constitution and he
has deprived one legitimate deserving candidate belonging to Scheduled
Tribe Category.
11. When there is specific statutory provision of Section 10, no
question of extending any further opportunity to the Petitioner arises.
Law does not provide the extending of opportunity or conducting inquiry
once there is order of invalidation of tribe certificate. The Petitioner was
reduced in rank vide order dated 11.07.2008. By further order dated
30.01.2009, he was again promoted temporarily. These orders are
25.WP-842-2018.odt
inconsequential. They would not protect the service of the Petitioner.
After invalidation of the tribe certificate, he is liable to be discharged
from service. Any other penalty by executive orders like reduction in rank
or deprivation of few service benefits is against statutory scheme and
spirit of law laid down by the Supreme Court. Petitioner is taking shelter
of these Government orders but the submission would run contrary to
the observations of the Supreme Court in the matter of Chairman and
Managing Director FCI and Ors. (supra) which is as follows :
"53. Administrative circulars and government resolutions are subservient to legislative
mandate and cannot be contrary either to constitutional norms or statutory principles.
Where a candidate has obtained an appointment to a post on the solemn basis that
he or she belongs to a designated caste, tribe or class for whom the post is meant
and it is found upon verification by the Scrutiny Committee that the claim is false,
the services of such an individual cannot be protected by taking recourse to
administrative circulars or resolutions. Protection of claims of a usurper is an act of
deviance to the constitutional scheme as well as to statutory mandate. No government
resolution or circular can override constitutional or statutory norms. The principle
that government is bound by its own circulars is well-settled but it cannot apply in a
situation such as present. Protecting the services of a candidate who is found not to
belong to the community or tribe for whom the reservation is intended substantially
encroaches upon legal rights of genuine members of the reserved communities whose
just entitlements are negated by the grant of a seat to an ineligible person. In such a
situation where the rights of genuine members of reserved groups or communities
are liable to be affected detrimentally, government circulars or resolutions cannot
operate to their detriment."
12. Petitioner was found to have been promoted vide order dated
11.07.2002 on adhoc basis. By Government Order dated 11.07.2008.
adhoc promotion was revoked and he was reverted to his original post.
This is not by way of any punishment for invalidation of the tribe
certificate. Only punishment contemplated by Section 10 of the Act, is
the dismissal from the service. No leverage can be read into the
statutory provision. The reduction of the Petitioner is not void and
therefore no benefit can be given to him to escape dismissal. We,
therefore, disapprove the submission of the Petitioner that order of
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termination would violate the principles of double jeopardy. We are
fortified in our finding by referring to above observations of the
Supreme Court in paragraph no.53.
13. It transpires from record that interim orders were passed on
23.01.2018. But that was not protection against order of termination. It
was only prohibition issued to the Respondent from filling in the post of
the Petitioner and recovering anything from him. We do not accept the
submission of the Petitioner that there was protection of his services
after order of invalidation either by High Court or by Government Order
dated 11.07.2018.
14. There is no legal sanctity to the Government Order dated
11.07.2008. Thereafter there was no need to mention that order in the
Government Resolution dated 11.07.2018 which is under challenge.
Respondent is justified in dismissing the Petitioner from the services.
Impugned action is perfectly in accordance with law. We do not find
merit in the petition.
15. Writ Petition is dismissed. Rule is discharged.
16. Civil Application stands disposed of.
[ SHAILESH P. BRAHME ] [ S.G. MEHARE ]
JUDGE JUDGE
najeeb..
