SURESH DEVAJI VAIRAGADE v. THE CONTROLLER GENERAL INDIAN BUREAU OF MINES & ANOR.

3

has provided 2% reservation for them in services for recruitment as also promotion. Principle of creamy layer is declared to be not applicable to such Special Backward class and it is further directed that such persons who have been recruited or promoted in service as Scheduled Tribe shall not be removed or reverted by Government, Semi Government organization. Said protection has been extended to employees in service of Government, Semi Government organization, Boards, Municipalities, Municipal Corporations, Zilla Parishad undertakings and Educational Institutions and is applicable to the employees in service prior to 15.06.1995. Thus in short, even if, claim of such employee to Scheduled Tribe is found to be invalid by the Scrutiny Committee, he is held eligible to continue in service or to continue on promotional post, but then as a Special Backward Class candidate.

3. In facts before us, it is not in dispute that the petitioner was appointed as Assistant Store Keeper (Technical), with the respondent no.1 as Halba Scheduled tribe category candidate. The Scheduled Tribe Halba is mentioned at Sr.No.19 in Constitution (Scheduled Tribe) Order, 1950. The petitioner thereafter was promoted on 14.06.1996 as Store Keeper

4

Technical, Grade-II and then on 30.06.2004 as Assistant Stores Officer. He was confirmed on his entry post as Assistant Store Keeper and also on promoted post. The claim of petitioner as belonging to Halba Scheduled Tribe was invalidated by the Scrutiny committee by its order dated 30.08.2005 and that order was challenged in Writ Petition No. 5341/2005. The said Writ Petition was decided on 18.01.2006 and the petitioner was permitted to withdraw it with liberty to him to make a representation to his employer for his continuation in service and this Court directed that till that representation was decided, petitioners services would not be terminated. Petitioner submitted his representation on 30.01.2006 and then by the impugned order dated 20.02.2008 his services have been terminated. The petitioner has thus approached this Court.

4. During arguments, petitioner did not rely upon the judgment of Hon'ble Apex Court in the case of State of Maharashtra .vrs. Milind Katware (2001 [2] SCC 4), and did not contend that because of said judgment his services have been protected. On the contrary, express reliance has been placed only on above mentioned government resolution dated 15.06.1995 and certain judgments of Hon'ble Apex Court.

5

5. Shri A.S. Manohar, learned Counsel for the petitioner, after pointing out the facts as above, has contended that the resolution of State Government is equally applicable even to services of respondent nos. 1 and 2 and in support has placed reliance upon the judgments of Hon'ble Apex Court reported at 2007 [3] Mh.L.J. 805 Punjab National Bank .vrs. Vilas Govindrao Bokade and (2008) 8 SCC 664 State of Maharashtra .vrs. Reshma Ramesh Meher and another. He states that the said judgments clearly covers the controversy involved and hence, the impugned order is unsustainable.

6. Shri Mishra, the learned A.S.G.I., has contended that policy decision taken by the State of Maharashtra on 15.06.1995 is applicable only to employees of State of Maharashtra and the various other bodies, institution, subordinate to it. He states that the said policy decision does not regulate the employment of petitioner with respondents. In support of his contentions, he has placed reliance upon the judgments reported at 2007 [5] SCC 336 Addl. General Manager, Human Resource, BHEL .vrs. Suresh Ramkrishna Burde, 2008 [4] SCC 612 Union of India .vrs. Dattatray Namdeo Mendhekar and 2009 [3] All MR

6

89 Ashok Bhaskar Chaulkar .vrs. Central Bank of India and others.

7. The present petitioner was in central government services and it is difficult to read the resolution of State Government dated 15.06.1995 as protecting his services in Central Government services. The judgment of Hon'ble Apex Court in the matter of State of Maharashtra .vrs. Reshma Meher (supra), is in respect of services where employee was terminated because of cancellation of her certificate by the Tahsildar, by order dated 12.07.1992. The termination was w.e.f. 05.02.1993 and this order of the Tahsildar was set aside on 13.07.1993 by the Divisional Commissioner in appeal. It is in this background, that issue of applicability of this resolution dated 15.06.1995 was gone into. The Hon'ble Apex Court in paragraph no.21 has noticed that order of Divisional Commissioner in appeal was not questioned by the appellant State of Maharashtra. Thus in view of the facts contained in paragraph no.21 of the said judgment, it is apparent that, the view has been taken in facts of that case. In the judgment in case of Punjab National

Bank .vrs. Vilas Govindrao Bokade (supra), the Hon'ble Apex Court in paragraph no.6 found that, the appellant Bank did not

7

question the resolution of government dated 15.06.1995 and subsequent resolution dated 30.06.2004. In absence of any challenge, contention was raised that case of Central Government employees/Nationalized Bank employees would not be governed by that resolution. The Hon'ble Apex Court has in paragraph no.5 found that said resolution was applicable in services of Government, Semi Government, Boards, Municipalities, Municipal Corporations etc. In the very same judgment, the other Hon'ble Judge of the Hon'ble Apex Court has in paragraph no.5 found that in so far as the Bank employees were concerned, protection was provided in paragraph no.38 of the judgment in case of State of Maharashtra .vrs. Milind Katware (supra). In paragraph no.4, judgment in the case of State of Maharashtra .vrs. Sanjay Nimje (2007 (3) Mh.L.J.795) is also referred and it is noticed that as the employee therein was appointed on 29.06.1995, he did not get protection in view of Section 10 of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. As already stated before us, the petitioner has given up his claim for protection on the basis of

8

Milind Katware's case (supra).

8. The judgment in the case of State of Maharashtra .vrs. Sanjay Nimje (supra), and Additional General Manager .vrs. Suresh Ramkrishna Burde (supra) are considered along with other judgments by the Division Bench of this court in recent judgment in the case of Ashok Bhaskar Chaulkar .vrs. Central Bank of India (supra), and it has been held that the government resolution dated 15.06.1995 is applicable to employees of Government of Maharashtra alone. As the employee there was found to be in employment of Central Bank of India, the said resolution was held not applicable to him. The judgment in the case of Addl. General Manager .vrs. Suresh Ramkrishna Burde (supra), has been relied upon and the conclusions in paragraph no.9 clearly show this finding. Though the judgment in case of Punjab National Bank .vrs. Vilas (supra), is not expressly mentioned, it is apparent that in paragraph no.7, the said decision is found to be not an authority in this respect. In view of this Division Bench judgment and various judgments considered therein, it is not necessary for us to delve more into the controversy. We find that the resolution dated 15.06.1995 does not have the effect of protecting the services of petitioner.

9

With the result, we find no merit in the writ petition, the same is accordingly dismissed. However, in the circumstances of the case, there shall be no order as to costs.

JUDGE JUDGE

Rgd.