IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2048 OF 2007
Chief Executive Officer, Zilla Parishad ...
Appellant
Versus
State of Maharashtra & others ...Respondents
JUDGMENT
J.M. PANCHAL, J.
1. The challenge in this appeal is to the judgment
dated August 31, 2004, passed by the Division Bench of
the High Court of Judicature at Bombay, Nagpur Bench,
in Writ Petition No. 1764 of 2003 whereby writ petition
filed by respondent No. 2, i.e., Gajanan Sadashiv Ghule,
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was allowed by setting aside the order of termination of
his services dated May 4, 1998.
2. Briefly stated the facts of the case are as follows:
Claiming that he belongs to Scheduled Tribe,
the respondent No. 2 applied to the appellant to appoint
him as an Assistant Teacher. The respondent No. 2 was
selected by the Subordinate Selection Board from the
Scheduled Tribes category and was appointed as
Assistant Teacher temporarily on January 16, 1993.
The appointment of the respondent No. 2 was subject to
verification of his tribe claim. The tribe Certificate
produced by the respondent No. 2 was forwarded for
verification to Scheduled Tribe Caste Scrutiny
Committee (the `Scrutiny Committee’ for short). Some of
the documents submitted by respondent No. 2 indicated
that he was a “Hindu Koli”. The Scrutiny Committee,
after giving the respondent No. 2 an opportunity of
hearing, invalidated the tribe Certificate by decision
dated November 6, 1997. The respondent No. 2 was
holding the post of Assistant Teacher temporarily, which
was specifically reserved for Scheduled Tribe. Therefore,
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the appellant terminated services of the respondent No.
2 by order dated May 4, 1998. Thereupon, the
respondent No. 2 filed writ petition No. 1660 of 1998
before the Nagpur Bench of Bombay High Court. He
challenged the order terminating his services as well as
order dated November 6, 1997, passed by the Scrutiny
Committee. It was pointed out to the Division Bench of
the High Court, hearing the said matter, that interview
was fixed by the Scrutiny Committee on November 6,
1997, but the respondent No. 2 received notice in that
behalf on November 12, 1997. The said submission
made on behalf of respondent No. 2 was accepted by the
High Court. The High Court set aside the order dated
November 6, 1997 invalidating caste claim of the
respondent No. 2 and directed the Scrutiny Committee
to decide the matter afresh after affording necessary
opportunity of hearing to him. The Court further
directed respondent No. 2 to appear before the Scrutiny
Committee on January 29, 1999 along with all
necessary documents. The respondent No. 2 appeared
before the Scrutiny Committee on January 29, 1999,
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but requested for grant of time and, therefore, he was
called upon to appear on December 30, 1999. Again,
the respondent No. 2 appeared before the said
Committee on December 30, 1999 and prayed to grant
time. The record shows that thereafter the respondent
No. 2 was not interested in prosecuting the inquiry
before the Scrutiny Committee. The respondent No. 2
filed Writ Petition No. 879 of 1999 challenging the order
dated May 4, 1998 by which his services were
terminated by the appellant. The Bombay High Court,
Nagpur Bench, by judgment dated April 17, 2000,
dismissed the said writ petition with the observation
that the respondent No. 2 was not interested in
proceeding further with the inquiry before the Scrutiny
Committee and was delaying the entire proceedings on
some or the other pretext.
3. After dismissal of the writ petition, the respondent
No. 2 appeared before the Scrutiny Committee on
April 24, 2000, but prayed to grant time.
Therefore, the Scrutiny Committee adjourned the
hearing to June 26, 2000. On the said date also
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the respondent No. 2 requested for more time,
which was granted by the Scrutiny Committee.
Thereafter, the respondent No. 2 did not appear
before the said Committee at all and, therefore, the
Scrutiny Committee decided to close the matter of
verification of tribe claim of the respondent No.2,
by order dated November 13, 2000. After a lapse
of about three years from the date of dismissal of
Writ Petition No. 879 of 1999, the respondent No.2
applied to the Government to reinstate him in
service claiming that he belongs to S.B.C. category
and should be granted protection of Government
Resolution dated June 15, 1995. The said
Resolution dated June 15, 1995, inter alia,
specifies as to which Caste should be considered
as Special Backward Class. The Rural
Development and Water Conservation Department
of the Government of Maharashtra, therefore,
addressed a letter dated February 6, 2002 to the
appellant stating that the respondent No. 2 was
appointed as Assistant Teacher by order dated
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October 6, 1992 (correct date of the appointment is
January 16, 1993) by the appellant on the post
reserved for Scheduled Tribe and even if the
certificate indicating that he belongs to Scheduled
Tribes was invalidated by the Scrutiny Committee,
he would be entitled to get protection in service in
view of Government Resolution dated June 15,
1995 because he has submitted a validity
certificate indicating that he belongs to Special
Backward Class. By the said letter the appellant
was directed to take necessary action in the
matter. In spite of the protection given by the
Government, the respondent No. 2 was not
reinstated in service. Therefore, he filed Writ
Petition No. 1764 of 2003 challenging the order
dated May 4, 1998 terminating his services. The
Division Bench of the High Court of Judicature at
Bombay, Nagpur Bench, has allowed the same by
judgment dated August 31, 2004, giving rise to the
instant appeal.
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4. This Court has heard the learned counsel for the
parties and considered the documents forming
part of the appeal.
5. From the record, it is evident that the stand of the
respondent No. 1, i.e., the State of Maharashtra, is
that the respondent No. 2 is entitled to the
protection of Government Resolution dated June
15, 1995. The well settled principle of law is that
once the certificate indicating that a person
belongs to Scheduled Tribe is invalidated by the
Caste Scrutiny Committee, his appointment
becomes void from the beginning. The void
appointment could not have been validated by the
Government by addressing a communication to the
appellant. The case of the appellant before the
High Court was that from the quota made available
to Special Backward Class candidates, the post
was filled up and no vacant post was available.
However, the High Court, by order dated December
16, 2003, directed the appellant to place a staffing
pattern including the sanctioned posts available
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and the occupation thereof by different candidates
and clarified that the writ petition filed by the
respondent No. 2 would be heard thereafter finally
at the stage of admission.
6. In view of the above mentioned direction given by
the High Court the appellant furnished necessary
particulars by filing reply. In the reply it was
pointed out that the Education Officer, Primary,
Z.P., Buldhana vide letter dated January 2, 2004
had informed the appellant that in the category of
Secondary School Teachers, there were four posts
reserved for S.B.C. and all of them were filled up as
under: –
LOWER GRADE ASSISTANT TEACHER
S.No. Caste Sanctioned Posts Vacant
Posts
Posts filled in
1. Open 155 146 09
2. S.B.C. 04 04 —
S.B.C.: –
1. Sunil Meharkar
2. Ku. Jyoti Dnyaneshwar Thakre-Palshi Bu.
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3. Ku. Jyoti Prabhakar Bawatkar-Mangrul
Nawaghare
4. Vilas Sitaram Wawre
Though these particulars were placed before the
Division Bench of the High Court by way of reply filed
on behalf of the appellant, the Division Bench did not
record any finding as to whether the posts reserved for
Special Backward Class were available or not and has,
by the impugned judgment, directed the appellant to
reinstate the respondent No. 2 in service forthwith
pursuant to order dated February 6, 2002, passed by
the Government with back wages from the date of
passing of the order by the State Government and to
grant the benefit of continuity in service on
reinstatement. What is relevant to notice is that the
data, which was produced by the appellant before the
Division Bench of the High Court by filing reply, which
indicated that no S.B.C. post was available, was not
controverted by the State of Maharashtra at all. The
record shows that pursuant to the judgment of the High
Court, impugned in this appeal, the respondent No. 2
has already been reinstated in service. The record
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would also show that the respondent No. 2 was in
service from January 16, 1993 till May 4, 1998 when
his services were terminated as his Caste Certificate was
invalidated by the Caste Scrutiny Committee. Again, he
is in service after impugned judgment was rendered on
August 31, 2004 till date and, therefore, it would be
harsh to direct termination of services of the respondent
No. 2. This Court further finds that Government had
passed the order on February 6, 2002 on the basis of
certificate produced by the respondent No. 2, which
indicated that he belongs to Special Backward Class.
The record also shows that he had produced this
Certificate dated June 12, 2002 indicating that he
belongs to Special Backward Class before the
appointment, but the appellant had not taken any steps
to get it verified through the Caste Scrutiny Committee.
In view of the fact that no post belonging to the Special
Backward Class category is available with the appellant,
this Court is of the opinion that interest of justice would
be served if the Government is directed to create
supernumerary post in the appellant No. 1 institution to
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accommodate the respondent No. 2 with liberty to get
the said Caste Certificate verified through the Caste
Scrutiny Committee.
7. For the foregoing reasons the appeal partly
succeeds. The respondent No. 1, i.e., State of
Maharashtra, is directed to create a
supernumerary post in the appellant No. 1
institution to accommodate the respondent No. 2
as early as possible and preferably within two
months from the date of receipt of the writ from
this Court. It would be open to the State of
Maharashtra and the appellant to get the Caste
Certificate dated June 12, 2002, submitted by the
respondent No. 2, indicating that he belongs to
Special Backward Class, verified from the Caste
Scrutiny Committee. If the Caste Scrutiny
Committee comes to the conclusion that the Caste
Certificate submitted by the respondent No. 2 is
valid, he would be continued in service and
granted all benefits except back wages from
February 6, 2002 to the date of his reinstatement
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in service pursuant to the impugned judgment. If
the claim made by the respondent No. 2 that he
belongs to Special Backward Class is not upheld
by the Caste Scrutiny Committee, the appellant
would be entitled to take appropriate action
against him in accordance with law.
8. Subject to above mentioned observations and
clarifications the appeal stands disposed of. There
shall be no order as to costs.
…………………………J.
[J.M. Panchal]
…………………………..J.
[Mukundakam Sharma]
New Delhi;
April 22, 2010