J.M Panchal, J.— The challenge in this appeal is to the judgment dated 31-8-2004, passed by the Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, in Writ Petition No. 1764 of 2003 whereby the writ petition filed by Respondent 2 i.e Gajanan Sadashiv Ghule, was allowed by setting aside the order of termination of his services dated 4-5-1998.
2. Briefly stated the facts of the case are as follows: claiming that he belongs to the Scheduled Tribe, Respondent 2 applied to the appellant to appoint him as an Assistant Teacher. Respondent 2 was selected by the Subordinate Selection Board from the Scheduled Tribes category and was appointed as Assistant Teacher temporarily on 16-1-1993.
3. The appointment of Respondent 2 was subject to verification of his tribe claim. The tribe certificate produced by Respondent 2 was forwarded for verification to the Scheduled Tribe Caste Scrutiny Committee (“the Scrutiny Committee”, for short). Some of the documents submitted by Respondent 2 indicated that he was a “Hindu Koli”. The Scrutiny Committee, after giving Respondent 2 an opportunity of hearing, invalidated the tribe certificate by decision dated 6-11-1997.
4. Respondent 2 was holding the post of Assistant Teacher temporarily, which was specifically reserved for the Scheduled Tribes. Therefore, the appellant terminated the services of Respondent 2 by order dated 4-5-1998. Thereupon, Respondent 2 filed Writ Petition No. 1660 of 1998 before the Nagpur Bench of the Bombay High Court. He challenged the order terminating his services as well as order dated 6-11-1997, 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 6-11-1997, but Respondent 2 received notice in that behalf on 12-11-1997. The said submission made on behalf of Respondent 2 was accepted by the High Court.
5. The High Court set aside the order dated 6-11-1997 invalidating the caste claim of Respondent 2 and directed the Scrutiny Committee to decide the matter afresh after affording necessary opportunity of hearing to him. The Court further directed Respondent 2 to appear before the Scrutiny Committee on 29-1-1999 along with all necessary documents. Respondent 2 appeared before the Scrutiny Committee on 29-1-1999, but requested for grant of time and, therefore, he was called upon to appear on 30-12-1999. Again, Respondent 2 appeared before the said Committee on 30-12-1999 and prayed to grant time. The record shows that thereafter Respondent 2 was not interested in prosecuting the inquiry before the Scrutiny Committee.
6. Respondent 2 filed Writ Petition No. 879 of 1999 challenging the order dated 4-5-1998 by which his services were terminated by the appellant. The Bombay High Court, Nagpur Bench, by judgment dated 17-4-2000 dismissed the said writ petition with the observation that Respondent 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.
7. After dismissal of the writ petition, Respondent 2 appeared before the Scrutiny Committee on 24-4-2000, but prayed to grant time. Therefore, the Scrutiny Committee adjourned the hearing to 26-6-2000. On the said date also Respondent 2 requested for more time, which was granted by the Scrutiny Committee. Thereafter, Respondent 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 Respondent 2, by order dated 13-11-2000.
8. After a lapse of about three years from the date of dismissal of Writ Petition No. 879 of 1999, Respondent 2 applied to the Government to reinstate him in service claiming that he belongs to SBC category and should be granted protection of Government Resolution dated 15-6-1995. The said Resolution dated 15-6-1995, 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 6-2-2002 to the appellant stating that Respondent 2 was appointed as Assistant Teacher by Order dated 6-10-1992 (correct date of the appointment is 16-1-1993) by the appellant on the post reserved for Scheduled Tribes and even if the certificate indicating that he belongs to the Scheduled Tribe was invalidated by the Scrutiny Committee, he would be entitled to get protection in service in view of Government Resolution dated 15-6-1995 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.
9. In spite of the protection given by the Government, Respondent 2 was not reinstated in service. Therefore, he filed Writ Petition No. 1764 of 2003 challenging the order dated 4-5-1998 terminating his services. The Division Bench of the High Court of Judicature at Bombay, Nagpur Bench has allowed the same by judgment dated 31-8-2004, giving rise to the instant appeal.
10. This Court has heard the learned counsel for the parties and considered the documents forming part of the appeal.
11. From the record, it is evident that the stand of Respondent 1 i.e the State of Maharashtra, is that Respondent 2 is entitled to the protection of Government Resolution dated 15-6-1995. The well-settled principle of law is that once the certificate indicating that a person belongs to the 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.
12. 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 16-12-2003, directed the appellant to place a staffing pattern including the sanctioned posts available and the occupation thereof by different candidates and clarified that the writ petition filed by Respondent 2 would be heard thereafter finally at the stage of admission.
13. In view of the abovementioned 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 2-1-2004 had informed the appellant that in the category of Secondary School Teachers, there were four posts reserved for SBC and all of them were filled up as under:
Lower Grade Assistant Teacher
Sl. No.
Caste
Sanctioned posts
Posts filled in
Vacant posts
1.
Open
155
146
09
2.
SBC
04
04
- -
SBC:
1. Sunil Meharkar
2. Ku. Jyoti Dnyaneshwar Thakre-Palshi Bu
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 Classes were available or not and has, by the impugned judgment, directed the appellant to reinstate Respondent 2 in service forthwith pursuant to Order dated 6-2-2002, 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.
14. 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 SBC 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, Respondent 2 has already been reinstated in service. The record would also show that Respondent 2 was in service from 16-1-1993 till 4-5-1998 when his services were terminated as his caste certificate was invalidated by the Caste Scrutiny Committee. Again, he is in service after the impugned judgment was rendered on 31-8-2004 till date and, therefore, it would be harsh to direct termination of services of Respondent 2.
15. This Court further finds that the Government had passed the Order on 6-2-2002 on the basis of certificate produced by Respondent 2, which indicated that he belongs to Special Backward Class. The record also shows that he had produced this certificate dated 12-6-2002 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.
16. 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 Appellant 1 institution to accommodate Respondent 2 with liberty to get the said caste certificate verified through the Caste Scrutiny Committee.
17. For the foregoing reasons the appeal partly succeeds. Respondent 1 i.e the State of Maharashtra, is directed to create a supernumerary post in Appellant 1 institution to accommodate Respondent 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 12-6-2002, submitted by Respondent 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 Respondent 2 is valid, he would be continued in service and granted all benefits except back wages from 6-2-2002 to the date of his reinstatement in service pursuant to the impugned judgment. If the claim made by Respondent 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.
18. Subject to the abovementioned observations and clarifications the appeal stands disposed of. There shall be no order as to costs.