Gujarat High Court
Executive Director & vs Lata N Saharkar on 14 August, 2017
Bench: M.R. Shah, B.N. Karia
C/LPA/1256/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1256 of 2017
In SPECIAL CIVIL APPLICATION NO. 3998 of 2014
With
CIVIL APPLICATION NO. 10266 of 2017
In
LETTERS PATENT APPEAL NO. 1256 of 2017
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
EXECUTIVE DIRECTOR & 1....Appellant(s)
Versus
LATA N SAHARKAR....Respondent(s)
=============================================
Appearance:
MS ARCHANA U AMIN, ADVOCATE for the Appellant(s) No. 1 2
MR SHIVANG J SHUKLA, CAVEATOR for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 14/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.06.2017 passed by the learned Single Judge in Special Civil Application No.3998/2014 by which the Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Aug 22 03:32:46 IST 2017 C/LPA/1256/2017 CAV JUDGMENT learned Single Judge has allowed the said petition and has quashed and set aside the order of termination and has directed the original respondents - appellants herein to allow the original petitioner to join as Assistant GradeIII, the original respondents have preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
[2.0] The facts leading to the present Letters Patent Appeal in nut shell are as under:
[2.1] That the original petitioner belonged to Halba Community (Scheduled Tribe). She was the resident of village Setu, District Warda (Maharashtra State). That at the time of recruitment, she produced the caste certificate issued by the Appropriate Authority signed and issued on 18.02.2017. That prior thereto the original petitioner was appointed and she joined the services of FCI Headquarters on 31.03.1995 for the post of Assistant GradeIII on the reserved post. That thereafter she was promoted to Assistant GradeII (A/cs.) on 17.03.2005 and further post of Assistant Grade I (A/cs.) on 04.11.2009. It appears that thereafter the original petitioner was called upon to produce the caste certificate issued by the competent authority. On failure to produce the fresh caste certificate, the original petitioner was served with the showcause notice notice by which the original petitioner was called upon to showcause as to why her services should not be disposed with in view of the Regulation 63(ii) of the FCI (Staff) Regulation 1971. That thereafter the service of the original petitioner was terminated mainly on the ground that the competent authority at Gandhinagar stated that the relevant record was not available with that office and therefore, and as the original petitioner did not produce the fresh caste certificate.Page 2 of 6
HC-NIC Page 2 of 6 Created On Tue Aug 22 03:32:46 IST 2017 C/LPA/1256/2017 CAV JUDGMENT [2.2] Feeling aggrieved and dissatisfied with the order of termination after exhausting the remedy of appeal etc., the respondent herein - employee preferred the aforesaid Special Civil Application before the learned Single Judge challenging the order of termination.
Before the learned Single Judge it was pointed out that as she belonged to Halba community and therefore, initially in the year 1995 at the time of recruitment, she produced a caste certificate issued by Maharashtra Authority. It was further submitted that however thereafter the original petitioner was called upon to produce another certificate issued by appropriate Authority of State of Gujarat and therefore, she produced the caste certificate issued by Appropriate Authority at Gandhinagar. It was submitted that she belonged to Halba community which is recognized as Scheduled Tribe Community. It was submitted that whether the Halba community can be considered as Scheduled Tribe or not, the Bombay High Court has held that candidates belonging to Halva community can be said to be Scheduled Tribe community and the decision of the Bombay High Court has been confirmed by the Hon'ble Supreme Court. It was further submitted that even the brother of the original petitioner who is serving in the State has also produced the similar certificate and that she has been continued in service. However, it was the case on behalf of the Department that the decision of the Bombay High Court shall be restricted to those persons who approached the Bombay High Court and therefore, the original petitioner cannot take the benefit of the decision of the Bombay High Court. That by impugned judgment and order the learned Single Judge has allowed the petition and has quashed and set aside the order of termination and has directed the appellants to reinstate the original petitioner on the post of Assistant GradeIII with further direction that the original Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Aug 22 03:32:46 IST 2017 C/LPA/1256/2017 CAV JUDGMENT petitioner be treated to be in service from the date of termination till the date of joining and that she will be given notional benefit of continuity in services and she will be entitled to all other benefits except salary for the period she remained out of service.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the original respondents have preferred the present Letters Patent Appeal.
[3.0] We have heard Ms. Archana Amin, learned advocate appearing on behalf of the original respondents and Shri Shivang Shukla, learned advocate appearing on behalf of the respondent, who is on caveat. We have perused the impugned judgment and order passed by the learned Single Judge .
[3.1] At the outset it is required to be noted that the original petitioner was appointed in the reserved category of Scheduled Tribe. The original petitioner claimed the benefit of reservation as Scheduled Tribe candidate on the ground that she belonged to Halba community. That she secured the job on the reserved post in the year 1995. That thereafter even she was promoted twice. In the year 1995, she produced caste certificate issued by the Maharashtra authority as she belonged to Maharashtra. That she also produced the certificate issued on 18.02.1987, issued by the District Backward Class Welfare Officer, Gandhinagar, District Ahmedabad. After a period of approximately 20 years the original petitioner was called upon to produce the fresh backward class certificate. The Department also inquired from the office of the Ahmedabad and Gandhinagar with respect to the caste certificate already produced in the year 1987, which was produced at the time of recruitment.Page 4 of 6
HC-NIC Page 4 of 6 Created On Tue Aug 22 03:32:46 IST 2017 C/LPA/1256/2017 CAV JUDGMENT However, the District Backward Class Welfare Officer, Ahmedabad and Gandhinagar stated that they do not have any record. Solely on the basis of the aforesaid, the services of the original petitioner came to be terminated. Considering the fact that the original petitioner belonged to Halba community and even her brother is also in the Government job in the Sales Tax Department in the State of Gujarat who also got the job in the category of Scheduled Tribe category (Halba community), by impugned judgment and order the learned Single Judge has rightly quashed and set aside the order of termination. At this stage it is required to be noted that there does not seem to be any dispute that petitioner does not belong to Halba community. She belong to Maharashtra. That whether candidate belonging to Halba community can be said to be beloning to Scheduled Tribe or not has been considered by the Bombay High Court and it is held that candidate belonging to Halba community are entitled to get the benefit as Scheduled Tribue community. The order passed by the Bombay High Court has been confirmed by the Hon'ble Supreme Court. However, the case on behalf of the Department that the decision of the Bombay High Court cannot be applicable to the petitioner and the same shall be applicable to only those who were before the Bombay High Court, cannot be accepted. The question is whether the candidate belonging to Halba community can be said to be a candidate belonging to Scheduled Tribe category or not and the Bombay High Court has held that the candidate belongnig to Halba community can be said to be a candidate belonging to Scheduled Tribe category.
[3.2] Considering the aforesaid facts and circumstances, when the learned Single Judge has set aside the order of termination and has directed the appellants to reinstate the original petitioner as Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Aug 22 03:32:46 IST 2017 C/LPA/1256/2017 CAV JUDGMENT Assistant GradeIII with continuity of service but without any backwages, it cannot be said that the learned Single Judge has committed any error which calls for interference of this Court in exercise of intraappellate Court jurisdiction. We are in complete agreement with the view taken by the learned Single Judge. No interference of this Court is called for.
[4.0] In view of the above and for the reasons stated above, present Letters Patent Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
Civil Application No.10266/2017 In view of dismissal of main Letters Patent Appeal, Civil Application No.10266/2017 also stands dismissed.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Aug 22 03:32:46 IST 2017