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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R.S Parsodkar
  • Sunil V. Manohar, Senior Advocate
  • S.K Mishra, A.S.G.I
  • P.B Patil/S.M Puranik
  • R.M Bhangde
  • A.G.P
  • M.M Sudame
Judges
  • B.R Gavai
  • S.P Deshmukh, JJ.
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R.S Parsodkar
  • Sunil V. Manohar, Senior Advocate
  • S.K Mishra, A.S.G.I
  • P.B Patil/S.M Puranik
  • R.M Bhangde
  • A.G.P
  • M.M Sudame
Judges
  • B.R Gavai
  • S.P Deshmukh, JJ.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion (B.R. Gavai, J.)

Factual and Procedural Background

The petitions arise from show cause notices issued to multiple employees of central and state institutions—specifically employees of the Food Corporation of India and some employees of the Reserve Bank of India—calling upon them to explain why their services should not be terminated for failure to produce documents required to refer their caste/tribe claims to the Scheduled Tribe Caste Certificate Scrutiny Committee. The petitioners were appointed long ago (in many instances 25 years or more prior to the opinion) on the basis of their claimed status as belonging to Scheduled Tribes (many claiming to be Halba Scheduled Tribe, and some claiming Thakur, Dhoba, Gowari or other categories).

At the relevant time of appointment, appointment on reserved posts required submission and District Magistrate verification of caste certificates. After the enactment of the Maharashtra Act No. 23 of 2001 concerning regulation of issuance and verification of caste certificates, petitioners were directed to submit documents for reference to the Caste Certificate Scrutiny Committee. Because they failed to provide those documents, show cause notices were issued on various dates (25-8-2007, 17-9-2008 and 29-12-2003) proposing termination for non-production of documents. The petitioners approached this Court by way of writ petitions challenging those notices and seeking protection of their services.

Legal Issues Presented

  1. Whether the show cause notices served on the petitioners (for failure to produce documents for referral to the Scrutiny Committee) are vitiated and liable to be quashed, entitling petitioners to protection of their services.
  2. Whether petitioners appointed (and whose appointments had become final) on the basis of their claimed Scheduled Tribe status before 28-11-2000 (particularly Halba Koshtis) are entitled to protection in view of precedents and the Office Memorandum dated 10-8-2000.
  3. Whether the writ petitions are maintainable at this stage (i.e., whether courts should decline to entertain petitions challenging a show cause notice prior to the Scrutiny Committee having considered the claim).
  4. Whether the petitioners could claim protection under the Office Memorandum dated 10-8-2000, and whether such protection is lost where a caste claim is subsequently found to be invalid or fraudulent.

Arguments of the Parties

Petitioners' Arguments (as advanced by Shri R.S. Parsodkar)

  • Reliance on the judgment in Kavita Solunke v. State of Maharashtra (2012 (5) Mh.L.J 921) and the Union of India Office Memorandum dated 10-8-2000 to assert that petitioners' services are entitled to protection.
  • Some petitioners have filed pursuits (Pursis), thereby giving up their claim of belonging to the Scheduled Tribe; this fact militates in favour of protecting their services and quashing the show cause notices.
  • The petitions should be allowed and the impugned show cause notices quashed.

Union of India / Respondent Arguments (as advanced by Shri S.K. Mishra, A.S.G.I)

  • The petitions challenging the show cause notices are not tenable in law; a writ against a show cause notice is normally not maintainable at this stage.
  • The petitioners approached this Court before their claims were considered by the Scrutiny Committee; hence the petitions are premature and liable to be dismissed.
  • It is only if the caste claims of petitioners are invalidated that they would be entitled to benefit of the Office Memorandum dated 10-8-2000; where claims are fraudulent, no benefit should be allowed.
  • The Division Bench order in Letters Patent Appeal No. 34/2012 (relying on the Full Bench in Ganesh Rambhau Kahale) was relied upon to oppose petitioners.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kavita Solunke v. State of Maharashtra, 2012 (5) Mh.L.J 921 Held that, given the peculiar circumstances and prior confusion, those Halba Koshtis whose appointments had become final on 28-11-2000 are entitled to protection; supportive of applying the Office Memorandum dated 10-8-2000 to protect services. The Court followed Kavita Solunke and applied its principle to protect the services of petitioners (especially Halba Koshtis) whose appointments had become final by 28-11-2000.
State of Maharashtra v. Milind (Constitution Bench), reported in 2001 (1) Mh.L.J 1 (Milind Katware's case) Constitution Bench held that Halba Koshtis cannot be treated as Scheduled Tribe, clarifying the confusion on 28-11-2000. The Court relied on this decision to conclude that Halba Koshtis can no longer be held to be Scheduled Tribe and used that to support protection for those appointed prior to the date when confusion was cleared.
Abhay Parate v. State of Maharashtra, 1984 Mh.L.J 289 Division Bench decision that contributed to the pre-28-11-2000 position treating Halba Koshtis as Scheduled Tribe, thereby creating the earlier confusion. The Court used the existence of this earlier decision to explain why confusion existed prior to the Constitution Bench decision and why protection for earlier appointments is appropriate.
Dattu Namdeo Thakur v. State of Maharashtra, 2012 (3) Mh.L.J (SC) 179 : (2012) 1 SCC 549 Held that disturbing the educational career or employment of a candidate which has become final with passage of time is not in the interest of anyone; supports protecting long-standing appointments. The Court applied this principle to hold that disturbing services of employees who had rendered long service (e.g., ~25 years) for non-production of verification documents would not be in the interest of justice, and therefore their services should be protected.
Ganesh Rambhau Kahale v. State of Maharashtra, 2009 (2) Mh.L.J (F.B) 788 (Full Bench) Full Bench judgment relied upon by a Division Bench in an order (Letters Patent Appeal No.34/2012) referenced by the respondents. The Court observed that the Division Bench order relying on Kahale did not consider the Office Memorandum of 10-8-2000; this Bench regarded the Kavita Solunke decision (and the Constitution Bench authority) as being more consonant with higher authority and therefore having more binding effect in the present context.
Writ Petition No. 900/2012 and others (this Court) Held that Halba Koshtis whose appointments had become final on 28-11-2000 are entitled to protection of their services. The present Bench followed the decision in Writ Petition No.900/2012 in protecting the petitioners' appointments on identical grounds.

Court's Reasoning and Analysis

The Court analyzed the matter through a sequence of legal and factual observations, applying precedent and service jurisprudence principles as follows:

  1. On tenability: The Court declined the preliminary objection by the Union that petitions challenging show cause notices are not tenable. The Court noted that objections as to tenability should ordinarily be taken at the stage of grant of rule and that admission for final hearing prevents dismissal on mere technical tenability grounds. The Court observed that the rule of non-exercise of jurisdiction against a show cause notice is a rule of self-restraint, and that where a show cause notice is vitiated, the Court may exercise its inherent jurisdiction under Article 226.
  2. On the factual matrix and identity of petitioners: The Court factually recorded that a large number of petitioners had claimed Halba Scheduled Tribe status (many more than other tribes), that appointments were largely many years ago (some between 1977–1981), and that some petitioners had already retired. It noted that petitioners' claims were earlier verified at District Magistrate level and their services had in many cases stood confirmed.
  3. On legal precedent: The Court relied primarily on Kavita Solunke, the Constitution Bench in State of Maharashtra v. Milind, Dattu Namdeo Thakur, and its own earlier decision in W.P. No.900/2012. The Court explained that pre-28-11-2000 there had been confusion (partly because of earlier Division Bench authority such as Abhay Parate) as to whether Halba Koshtis were to be treated as Scheduled Tribe; that confusion was clarified by the Constitution Bench on 28-11-2000 when Halba Koshtis were held not to be Scheduled Tribe. Because of that peculiar historical confusion, courts have given protection to those whose appointments had become final before the date the confusion was cleared.
  4. On fraud and show cause content: The Court observed that the show cause notices in the present cases contained no allegation or whisper of any fraudulent act by petitioners; the sole ground in the notices was failure to produce documents for referral to the Scrutiny Committee. The Court concluded that compelling petitioners (some of whom had given up their ST claim) to undergo the formal scrutiny would be an empty formality and would unnecessarily burden already-overloaded committees.
  5. On divergent precedents: The Court addressed the respondent's reliance on a Division Bench order dismissing a writ (Letters Patent Appeal No.34/2012) which had followed the Full Bench in Ganesh Rambhau Kahale. This Court found that the Division Bench order did not consider the Office Memorandum of 10-8-2000 and held that Kavita Solunke (which the Court considered consonant with the Constitution Bench in Milind) was more binding for present purposes than the LPA dismissal.
  6. On the scope of relief: The Court differentiated among the petitioners. It refused to entertain a petition filed on behalf of an association (petitioners Nos.1 to 3) and dismissed that petition in service jurisprudence terms. For the remaining petitioners, and particularly those with long service and whose appointments had become final prior to the date the legal confusion was clarified, the Court concluded that limited relief was appropriate: quashing the show cause notices, declaring protection of their appointments, but permitting the respondents to withdraw any benefits that had been granted after 28-11-2000 on the basis that petitioners belonged to Scheduled Tribes and restore the position as on that date.

Holding and Implications

Core Holding: Writ petitions are allowed; the impugned show cause notices are quashed and the petitioners are declared entitled to protection of their appointments.

Direct consequences (as stated by the Court):

  • The impugned show cause notices issued to the petitioners are quashed and set aside.
  • The petitioners are declared entitled to protection of their appointments (limited relief sought).
  • If any benefits were granted after 28-11-2000 on the basis that the petitioners belong to Scheduled Tribes, respondent authorities are at liberty to withdraw those benefits and restore the position as on 28-11-2000; respondents to take further necessary steps accordingly.
  • The writ petitions are allowed and the rule is made absolute in the terms recorded; no order as to costs was made.
  • Separately, the petition filed on behalf of petitioners Nos.1 to 3 (an association) was dismissed because, in service jurisprudence, when an employee can agitate his own claim, it is inappropriate to entertain a petition on behalf of an association.

Broader precedent-setting: The Court's decision rests on applying and following existing precedent (Kavita Solunke, the Constitution Bench in Milind, Dattu Namdeo Thakur, and this Court's prior decisions). The opinion does not purport to lay down an independent novel principle beyond applying those authorities and the Office Memorandum; the immediate effect is the protection of the petitioners' appointments in the factual and legal matrix described.

Petitions allowed.
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    A.P Ramtekkar And Others v. Union Of India And Others

    B.R Gavai, J.:— The petitions are taken up for hearing by consent of the learned Counsel appearing for the respective parties.

    2. The petitioners in Writ Petition Nos. 5198/2009 and 2126/2010 are the employees of the Food Corporation of India. Petitioners 4 to 7 in Writ Petition No. 1512/2004 are employees of Reserve Bank of India. They have approached this Court being aggrieved with an action of the respondents in issuing show cause notice to them, as to why their services should not be terminated on the ground that they have failed to produce the documents required for referring their caste/tribe claim to the Scheduled Tribe Caste Certificate Scrutiny Committee.

    3. The facts in brief are that, all the petitioners have been appointed on various posts prior to 25 years and above. The petitioners were appointed on the basis of their claim as belonging to Scheduled Tribe. Most of the petitioners in the above said writ petitions, claim to be belonging to Halba Scheduled Tribe; some of them belong to Thakur, Dhoba and Gowari.

    4. That as per the policy prevailing at the relevant time and in view of the office memorandum issued earlier, an employee seeking appointment against a post reserved for some reserved category, was required to submit his/her caste certificate. This caste certificate was thereafter required to be verified by the District Magistrate. It is the case of petitioners, that subsequently, after their appointments, their claims have been found to be valid by the District Magistrate and their services stood confirmed.

    5. It appears that after 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 Certificates Act, (Act No, 23 of 2001) came into effect, the petitioners were directed to submit their documents for referring their claims to the Caste Certificate Scrutiny Committee, established under the Act. Since the petitioners failed to supply the said documents, show cause notice came to be served upon them on 25-8-2007, 17-9-2008 and 29-12-2003, calling upon them as to why their services should not be terminated on account of non production of the documents to be submitted to the Verification and Scrutiny Committee.

    6. Being aggrieved thereby, the petitioners are before this Court by way of the aforesaid Writ Petitions.

    Shri R.S Parsodkar, learned Counsel appearing on behalf of the petitioners submits that in view of the judgment delivered in the case of Kavita Solunke v. State of Maharashtra, reported in 2012 (5) Mh.L.J 921 as well as the Office Memorandum dated 10-8-2000 issued by the Union of India, the services of petitioners are entitled to be protected. The learned Counsel further submits that the petitioners have filed Pursis, thereby giving up their claim of belonging to the Scheduled Tribe. The learned Counsel therefore, submits that the petitions need to be allowed by quashing and setting aside the show cause notices and protecting the services of petitioners.

    7. Shri S.K Mishra, learned Standing Counsel appearing on behalf of the Union of India, vehemently opposes the petitions. He submits that the petitions challenging the show cause notices itself is not tenable in law. The learned Counsel further submits that the petitions are also liable to be dismissed on the ground that the petitioners have approached this Court even before their claims being considered by the Scrutiny Committee.

    8. Shri Mishra, learned A.S.G.I further submits that it is only in the event the caste claims of petitioners as belonging to Halba Scheduled Tribes are invalidated, they would be entitled to the benefit of the office memorandum dated 10-8-2000. The learned Counsel further submits that, in the event the claims are found to be fraudulent, they would not be entitled to any benefit. It is therefore, submitted that the petitions are not tenable in law.

    9. So far as the objection by the learned A.S.G.I appearing on behalf of the Union of India regarding tenability of the petitions is, concerned, by now it is a settled position in law that all the objections regarding the tenability of the petition are to be taken at the stage of grant of Rule. Once the petition is admitted for final hearing, the petition cannot be thrown on a technical ground of tenability of the petition. Even otherwise, the rule regarding non-exercise of jurisdiction against a show cause notice is a Rule of self-restraint. If this Court comes to the conclusion that the show cause notice, itself is vitiated on one ground or the other, this Court would not be precluded from exercising inherent jurisdiction under Article 226 of the Constitution of India. In that view of the matter, we are not inclined to entertain the preliminary objection raised by the learned A.S.G.I

    10. Undisputedly, out of 25 petitioners in Writ Petition No. 5198/2009, 21 petitioners had claimed their appointment on the basis, as belonging to Halba Scheduled tribe; 4 others had claimed on the basis as belonging to Thakur, Scheduled Tribe. In Writ Petition No. 2126/2010, out of 36 petitioners only 6 belong to non-Halba Tribe and rest claim to the belonging to Halba Scheduled Tribe. Undisputedly 4 petitioners have already retired from service.

    11. The Hon'ble Apex Court in case of Kavita Solunke (supra), relying upon the Constitution Bench judgment in case of State of Maharashtra v. Milind, reported in 2001 (1) Mh.L.J 1, has taken a view that on account of peculiar circumstances, there was a confusion as to whether Halba Koshtis are entitled to be treated as Scheduled Tribe or not. This confusion has been cleared for the first time on 28-11-2000 i.e on the date on which the Constitution Bench held that Halba Koshtis cannot be treated as Scheduled tribe. Following the law laid down in the case of Kavita Solunke (supra), this Court in Writ Petition No. 900/2012 and others, have held that all Halba Koshti whose appointments had become final on 28-11-2000 are entitled to protection of their services. Not only this, the office memorandum issued by the Union of India on 10-8-2000 is also on the same lines, which protects the services of Halba Koshtis.

    12. Insofar as the other Scheduled Tribes are concerned, in case of Dattu Namdeo Thakur v. State of Maharashtra, reported in 2012 (3) Mh.L.J (SC) 179 : (2012) 1 SCC 549, the Hon'ble Apex Court has held that disturbing the educational career or employment of a candidate which has become final with passage of time, will not be in the interest of any one. We are also of the view that disturbing the services of candidates who have rendered 25 years, on the ground of non-submission of the documents for verification of their caste/tribe claims, will not be in the interest of justice, particularly when the petitioners themselves have given an undertaking to give up their claim as belonging to Scheduled Tribes. Undisputedly, the petitioners caste claims were verified at the District Magistrate level, at the relevant time. The show cause notice which are issued to them are only on the ground that they have failed to submit their documents for forwarding their caste/tribe claims to the competent Scrutiny Committee. As already held in the case of Kavita Solunke (supra), and as already followed by us in Writ Petition No. 900/2012, the position prior to 28-11-2000, was a confused position, wherein the Halba Koshtis were to be treated as Scheduled Tribe, in view of the law laid down by the Division Bench in case of Abhay Parate v. State of Maharashtra, reported in 1984 Mh.L.J 289. In that view of the matter, we find that so far as Halbas are concerned, their services are liable to be protected.

    13. Insofar as the other Scheduled Tribes care concerned, their services are liable to be protected in view of the law laid down in Dattu Namdeo Thakur (supra).

    14. Insofar as the contention of learned A.S.G.I regarding fraud coming into force is concerned, there is not even a whisper in the show cause notice of any fraudulent act on the part of petitioners. The only ground raised in the show cause notice is that the petitioners have failed to produce the documents for referring it to the Scrutiny committee. We find that in the facts of the present case, permitting the course adopted by the respondents of referring the claim of petitioner to scrutiny committee, particularly when the petitioners are themselves giving up their claim of belonging to Scheduled Tribe, would be an empty formality. In view of the law laid down by the Hon'ble Apex Court in State of Maharashtra v. Milind (supra), the petitioners who are Halba Koshti can now by no stretch of imagination be held to be belonging to Scheduled Tribe. We therefore, fail to understand the approach of the employer in compelling the petitioners to undergo the scrutiny as to whether they belong to scheduled tribes or not, when as a matter of fact they have given up their claim as belonging to Scheduled Tribe. We find that apart from it being an empty formality, it would unnecessarily increase the work load of the committees which are already over burdened.

    15. Insofar as the order passed by the Division Bench of this Court in Letters Patent Appeal No. 34/2012, relied upon by Shri Mishra, learned A.S.G.I is concerned, it is only an order upholding the view of the learned Single Judge, which in turn dismissed the Writ Petition arising out of an order passed by the School Tribunal. We find that the said order does not consider the office memorandum dated 10-8-2000. It appears that the learned Judges of the said Division Bench have relied on the Full Bench judgment in case of Ganesh Rambhau Kahale v. State of Maharashtra, reported in 2009 (2) Mh.L.J (F.B) 788. However, this Bench in judgment delivered in Writ Petition No. 900/2012 and others, after considering the judgment of Full Bench has held that the law laid down in the case of Kavita Solunke (supra), is in consonance with what is held by the Constitution Bench in Milind Katware's case (supra), therefore, the said judgment delivered by this Court would have more binding effect on us, rather the order dismissing the Letters Patent Appeal in limine.

    16. Insofar as this Writ Petition is concerned, we are not inclined to entertain the petition on behalf of petitioner Nos. 1 to 3, in as much as, in service jurisprudence, when an employee is in a position to agitate his own claim, it would not be appropriate to entertain a petition on behalf of a Association. Petition, therefore, insofar as petition Nos. 1 to 3 stands dismissed.

    17. Insofar as petitioner Nos. 4 to 8 are concerned, the petitioner Nos. 5, 6 and 8 are Halba and other two are belonging to Halba Scheduled tribe and Konti, Other Backward Classes. Undisputedly all the petitioners are employed between 1977–1981.

    18. In that view of the matter, we find that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It is declared that the petitioners would be entitled to protection of their appointments. It is further declared that if any benefits are granted after 28-11-2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to withdraw the said benefits and restore the position as on 28-11-2000. The respondents to take further necessary steps in accordance therewith.

    19. Writ Petitions are allowed. Rule is made absolute in the aforesaid terms, with no order as to costs.

    Petitions allowed.
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    Comments

    A.P Ramtekkar And Others v. Union Of India And Others
    (Nov 1, 2012)