Bombay High Court
Maharashtra Vidya Prasarak Mandal, ... vs Vijay Sukhalal Rajput And Another on 1 February, 2019
Equivalent citations: AIRONLINE 2019 BOM 222
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.499 of 2017
...
1. Maharashtra Vidya Prasarak
Mandal Khamgaon, a Public
Trust registered under the
provisions of the Maharashtra
Public Trust Act, bearing
registration No. F-269/Buldhana,
Khamgaon, District Buldhana
through its President, having its
Office at Janori, Taluka Shegaon,
District Buldhana.
2. Head Master,
Maharashtra Vidyalaya,
Janori, Taluka Shegaon,
District Buldhana. .. PETITIONERS
.. Versus ..
1. Vijay Sukhalal Rajput,
Aged about 42 years,
Resident of Adarsh Nagar,
Khamaon Road, Shegaon,
Taluka Shegaon,
District Buldhana.
2. Education Officer (Secondary),
Zilla Parishad, Buldhana,
District Buldhana. .. RESPONDENTS
Mr. M.M. Agnihotri, Advocate for Petitioner.
Ms. P.D. Rane, Advocate for Respondent No.1.
Mr. P.S. Tembhre, AGP for Respondent No.2.
....
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CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : DECEMBER 18, 2018.
DATE OF PRONOUNCING JUDGMENT : FEBRUARY 01, 2019
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. The question that arises for consideration in this writ petition is, as to whether the School Tribunal in the present case was justified in dismissing the application of the petitioners and holding that the appeal filed by the respondent no.1 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short MEPS Act), was tenable and that the plea raised on behalf of the petitioners that the appeal deserved to be dismissed at the threshold was not sustainable.
3. The respondent no.1 in the present case claimed to be belonging to Rajput Bhamta community, recognized as a Vimukta Jati Nomadic Tribe (VJNT), ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 3 WP499-17.odt thereby being entitled for appointment on posts reserved for the said category of tribe. The respondent no.1 relied upon caste certificate dated 23.02.1983 issued by the Executive Magistrate, Bhadgaon, to the effect that he belonged to Rajput Bhamta VJNT. On this basis, the respondent no.1 was appointed as an Assistant Teacher in a School run by the petitioner no.1 Trust. On 31.12.1999, the respondent no.2 Education Officer granted approval to the appointment of the respondent no.1 subject to the production of caste validity certificate by the respondent no.1.
4. On 23.05.2001, 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 Certificate Act, 2000 (hereinafter referred to as "the Act of 2000) was brought into force. As per the appointment order and requirement of the order of approval issued by the Education Officer, as also in terms of provisions of the Act of 2000, the respondent no.1 was required to produce caste validity certificate and accordingly the caste certificate produced by the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 4 WP499-17.odt respondent no.1 was referred by the petitioners to the Divisional Caste Scrutiny Committee, Dhule, on 30.04.2004. As the respondent no.1 failed to produce caste validity certificate from the Scrutiny Committee and since the respondent no.2 Education Officer was repeatedly putting pressure on the petitioners for producing the validity certificate of respondent no.1, the petitioners terminated/cancelled the appointment of respondent no.1 by order dated 23.03.2012. This was challenged by the respondent no.1 before the School Tribunal by filing an appeal, which was allowed on the ground that when the question of caste validity was pending before the Scrutiny Committee, the petitioners could not have terminated the services of the respondent no.1. Further, the Tribunal granted liberty to the petitioners to take appropriate action as per law against the respondent no.1 if the Scrutiny Committee invalidated the caste certificate of respondent no.1. Accordingly, the respondent no.1 was reinstated and the proceedings before the Scrutiny Committee ultimately came to an end on 30.07.2013 when order was passed by the Scrutiny Committee, holding that the respondent no.1 had failed to prove his claim of belonging to Rajput ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 5 WP499-17.odt Bhamta VJNT. On this basis, the Scrutiny Committee held the claim of respondent no.1 to be invalidated and directed confiscation of the caste certificate produced by respondent no.1. It was held by the Scrutiny Committee that the respondent no.1 had raised a false claim and on that basis, he had secured employment with the petitioners.
5. Consequently, on 30.08.2013 the petitioners issued order terminating the services of respondent no.1 on the ground of having produced false documents for securing employment. Reference was made to the Act of 2000 while terminating the services of respondent no.1. The respondent no.1 filed Writ Petition No. 4747 of 2013, before this Court wrongly claiming that he was appointed on a post in the open category. But, later it was submitted on behalf of the respondent no.1 that the said stand had been taken erroneously and hence he withdrew the said writ petition to file a fresh writ petition. Accordingly, by order dated 23.06.2014, the said writ petition was disposed of as withdrawn with liberty to the respondent no.1 to file a fresh writ petition. The respondent no.1 then filed Writ Petition No. 3413 of 2014 ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 6 WP499-17.odt before this Court challenging the order of the Scrutiny Committee invalidating his caste claim. A preliminary objection was raised by the petitioners that the Scrutiny Committee at Dhule did not fall in the jurisdiction of this Bench and by upholding the said preliminary objection , the said writ petition was disposed of with liberty to the respondent no.1 to move the appropriate Bench. Thereafter, the respondent no.1 filed Writ Petition No. 182 of 2015, before the Aurangabad Bench of this Court challenging the order of the Scrutiny Committee, Dhule. The said writ petition was dismissed by the Aurangabad Bench of this Court, categorically holding that the petitioner had placed on record incorrect genealogy showing his blood relationship with one Sarang who had a validity certificate in his favour, in order to secure wrongful benefits. The said writ petition of respondent no.1 was dismissed by the Aurangabad Bench of this Court, observing that it would be open for the Scrutiny Committee, Dhule, or State Authorities to take appropriate steps against the said Sarang, who had also produced incorrect/wrong genealogy in order to facilitate undue benefits for respondent no.1. It was further held that the respondent no.1 had produced false records in ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 7 WP499-17.odt respect of genealogy and accordingly he was not entitled to claim any relief in equity jurisdiction. The last observation made against the respondent no.1 was in the context of protection of service of respondent no.1 with the petitioners.
6. In the meanwhile, the respondent no.1 had filed appeal before the School Tribunal at Amravati, on 24.07.2014 under Section 9 of the MEPS Act, challenging the order of termination of service dated 30.08.2013. This appeal was later on numbered as Appeal No.11 of 2016. In this appeal, the petitioners moved an application for dismissal of the appeal as not being tenable by stating the aforesaid facts pertaining to the service of respondent No.1, the invalidation of his caste claim, leading to termination of service by the order dated 30.08.2013. It was submitted that judgments of this Court and the Hon'ble Supreme Court, particularly the latest three judges of the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (2017) 8 Supreme Court Cases 670, demonstrated that the respondent no.1 had secured employment with ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 8 WP499-17.odt the petitioners on the basis of false caste certificate and fraud and that, therefore, the appeal filed by the respondent no.1 was not tenable before the Tribunal, particularly in view of order passed by this Court in the aforesaid writ petition filed by him. The respondent no.1 filed his reply opposing the said application and he contended that his service had been wrongly terminated without enquiry contemplated under the MEPS Act and the Rules framed thereunder and that, therefore, the appeal could not be dismissed at the threshold. By the impugned order, the School Tribunal rejected the application of the petitioners and held that the appeal would be considered on merits. The present writ petition has been filed by the petitioners challenging the said order.
7. Mr. M.M. Agnihotri, learned counsel appearing for the petitioners submitted that the Tribunal committed an error in dismissing the application filed by the petitioners because once the caste certificate of the respondent no.1 was found to be invalid and the appointment as well as approval given by respondent no.2 for appointment of respondent no.1 was subject to ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:32 ::: 9 WP499-17.odt grant of validity certificate by the Scrutiny Committee, the very appointment of respondent no.1 was rendered void. On this basis, there was no question of holding any enquiry under Rules 36 and 37 of the Rules framed under the MEPS Act. It was submitted that the respondent no.1 had himself claimed relief of protection of service while challenging order of the Scrutiny Committee, but the Aurangabad Bench of this Court had rejected the said relief sought on the basis of equity. In these circumstances, the appeal filed by respondent no.1 under Section 9 of the MEPS Act was clearly not tenable and that the grounds raised in the appeal could not be considered by the Tribunal while exercising jurisdiction under Section 9 of the MEPS Act. It was submitted that the provisions of the Act of 2000, particularly Section 10 thereof clearly demonstrated that all benefits derived by a person like the respondent no.1 on the basis of false caste certificate were immediately liable to be withdrawn and that, therefore, the appeal before the Tribunal was not tenable. The learned counsel for the petitioners heavily relied upon the judgment of the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 10 WP499-17.odt Jagadish Balaram Bahira (supra) to contend that the appeal filed by the respondent no.1 before the Tribunal was liable to be dismissed at the threshold.
8. On the other hand, Ms. Priti Rane, learned counsel appointed through legal aid for appearing on behalf of respondent no.1, submitted that the appeal filed by the respondent no.1 before the Tribunal could not be thrown out at the threshold. It was submitted that the respondent no.1 was entitled to argue that the petitioners ought to have conducted an enquiry under Rules 36 and 37 of the Rules framed under the MEPS Act before terminating his service. It was submitted that a ground had been raised in the appeal that the person who had signed the order of termination of service dated 30.08.2013, was not having any authority to do so, as there were documents to show that he was not President of the petitioner no.1 at the relevant time. It was further submitted that a judgment of this Court in the case of Anna Manikrao Pethe .vs. Presiding Officer, School Tribunal - 1998 (4) Bom. C.R. 565 laid down that the School Tribunal was required to frame three preliminary issues while considering an appeal under Section 9 of the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 11 WP499-17.odt MEPS Act and these three issues were (i) whether the School was a recognised school as defined under the M.E.P.S. Act; (ii) whether the appointment of the concerned teacher was made as per section 5 of the M.E.P.S. Act and the Rules thereunder and (iii) whether such an appointment was approved by the Education Officer in pursuance of the provisions of the Act as well as the Rules framed thereunder. It was submitted that other than the said three preliminary issues specifically indicated in the said judgment of this Court, the School Tribunal had no authority to frame any other preliminary issue regarding tenability of the appeal filed by the respondent no.1. On this basis, it was submitted that the impugned order was justified and that the appeal of the respondent no.1 was required to be considered and disposed of on merits by the School Tribunal.
9. Mr. P.S. Tembhre, learned AGP, appeared on behalf of the respondent no.2 - Education Officer. He pointed out that the approval granted by the respondent no.1-Education Officer to the appointment of the respondent no.1, was subject to producing caste validity certificate from the Scrutiny Committee, which ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 12 WP499-17.odt respondent no.1 had clearly failed to produce, thereby leading to his termination of service.
10. In the present case, admitted facts are that the appointment of the respondent no.1 as an Assistant Teacher in the School run by petitioner no.1 trust was subject to submitting validity certificate and it was approved by the respondent no.2 - Education Officer, specifically subject to producing caste validity certificate by respondent no.1. It is also an admitted fact that the respondent no.1 failed to produce the caste validity certificate. In fact, by order dated 30.07.2013, the Scrutiny Committee at Dhule, invalidated the caste claim of respondent no.1 and declared that the caste certificate issued by the concerned authority stating that respondent no.1 belonged to Rajput Bhamta VJNT was invalidated and that the concerned authority was required to confiscate the caste certificate. In the said order, the Scrutiny Committee rendered findings against the respondent no.1 of having produced false genealogy to claim that he belonged to Rajput Bhamta VJNT. Therefore, an adverse finding came on record regarding false and fraudulent claim made by respondent no.1. The ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 13 WP499-17.odt writ petition filed respondent no.1 challenging the said order of the Scrutiny Committee was dismissed by the Aurangabad Bench of this Court making specific observations against him. In the order dated 29.09.2015 passed by the Aurangabad Bench of this court, it was observed as follows:-
" 5. In order to verify the contentions raised by petitioner, we directed the Scrutiny Committee to place on record original file in respect of claim for verification of caste certificate of said Sarang Vijaysing Patil. On perusal of the file, it is noticed that an affidavit has been presented by one Balkrishna Suresh Patil as well as Vijaysing Ukhardu Patil, recording therein family tree/genealogy. In the genealogy drawn by father of the validity holder i.e. Vijaysing Ukhardu Patil, it has been recorded that one Kisanraysing has two sons i.e. Ukhardu and Dagadu. The grandson of Ukhardu i.e. son of Vijaysing is validity holder Sarang. So far as great grand father of Balkrishna Suresh Patil is concerned, his name does not find place in the genealogy drawn by Vijaysing Ukardu Patil and placed on record in the matter concerning issuance of validity certificate in faovur of Sarang. It does appear that the petitioner, in order to secure wrongful benefit, has recorded incorrect genealogy showing his blood relationship with Sarang, who is validity certificate holder. It does appear that said validity certificate holder Sarang has placed on record, in the instant petition, an affidavit certifying that he is a blood relation of Vijay Sukalal Rajput- petitioner.
6. It would be open for Respondent-
Scrutiny Committee or the State
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authorities to take appropriate steps against Sarang Vijyasing Patil for producing incorrect/wrong genealogy in order to extend undue benefit to the petitioner i.e. Vijay Sukalal Patil. Since the petitioner has placed reliance on the false record in respect of genealogy in order to demonstrate his blood relationship with Sarang Vijaysing Patil-validity certificate holder, according to us, petitioner is not entitled to claim any relief in equity jurisdiction. Writ Petition is devoid of substance."
11. The aforesaid observations made by the Aurangabad Bench of this Court while dismissing the writ petition of respondent no.1 show that the respondent no.1 had relied upon false record before the Scrutiny Committee and on that basis it was observed that he was not entitled to claim any relief in equity jurisdiction. This observation was made in the backdrop of protection of service sought by the respondent no.1, even if the finding of the Scrutiny Committee rejecting his claim was upheld. Thus, the findings of the Scrutiny Committee stood confirmed by dismissal of the aforesaid writ petition by Aurangabad Bench of this Court and the observations made against the respondent no.1 attained finality, because respondent no.1 admittedly did not challenge the said order of the Aurangabad Bench of this ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 15 WP499-17.odt Court.
12. The aforesaid facts demonstrate that the respondent no.1 procured employment with the petitioners on the basis of a false caste certificate, which was obtained by him, without any basis to support his claim of belonging to Rajput Bhamta VJNT. He was appointed on a post reserved for the said category by the petitioners, on the basis of his claim and caste certificate of belonging to Rajput Bhamta VJNT. The said appointment of the respondent no.1 was approved by the Education Officer, subject to producing caste validity certificate. Thus, the very appointment of respondent no.1 was contingent upon his placing on record caste validity certificate in order to support his claim of belonging to Rajput Bhamta VJNT. The Caste certificate and claim of the petitioner was not only found to be invalid by the Scrutiny Committee and this Court, but it was found that the respondent no.1 had indulged in falsehood and he produced fraudulent documents to support his claim of belonging to Rajput Bhamta VJNT. This clearly demonstrated that the very appointment of the respondent no.1 was void ab initio and the order of ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 16 WP499-17.odt termination of service dated 30.08.2013 passed by the petitioners was nothing but a consequence of the appointment of respondent no.1 being void.
13. In the aforesaid judgment of the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (supra) while considering the question of protecting services of persons whose caste certificates and claims had been found to be invalid, the Hon'ble Supreme Court by referring to provisions of the Act of 2000, has specifically held that such appointments were not sustainable at the very inception and that there was no question of protection of service or any equities in favour of such persons whose very appointments were based on false caste claims. The Hon'ble Supreme Court overruled earlier judgments passed by various Benches of the Hon'ble Supreme Court and also judgments of this Court, wherein protection of service was granted to persons whose caste claims had been found to be invalid.
14. The relevant portion of the judgment of the Hon'ble Supreme Court in the case of Chairman ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 17 WP499-17.odt Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (supra) reads as follows:-
"54. The object and purpose underlying the enactment of the state legislation is to regulate the issuance of caste certificates and to deal with instances which had come to light where persons who did not belong to the Scheduled Castes or Tribes or reserved categories were seeking appointments or admissions to the detriment of genuine candidates. The basic purpose and rationale for the legislation is to secure the just entitlements of legitimate claimants. The judgment in Shalini is with respect in error in imputing the requirement of a dishonest intent into the provisions of Section 10. Sections 7 and 10 have to be construed in harmony. Section 7 provides for the cancellation of a caste certificate where before or after commencement of the Act, a person who does not belong to a reserved category has obtained a false caste certificate and the Scrutiny Committee, after enquiry, is of the opinion that the certificate was obtained fraudulently. These requirements have to be fulfilled before the certificate is cancelled. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained form the basis of a cancellation under Section 7. Section 10 prescribes that a person who does not belong to a reserved category and secures admission or obtains appointment against a reserved post by producing a false caste certificate shall upon its cancellation by the Scrutiny Committee be debarred from the institution or as the case may be discharged from employment and the benefits derived shall be withdrawn. Sub-section (2) provided for the recovery of all financial benefits while sub-section (3) provides for the cancellation of a degree, diploma or educational qualification. Sub- section (4) provides for disqualification from electoral office. The falsity of the certificate is the basis of an order under Section 7. Section 10 provides the consequence. The challenge to an order of the Scrutiny ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 :::
18 WP499-17.odt Committee (invalidating a caste or tribe certificate) may fail or succeeds. If the challenge before the High Court succeeds, no question of the consequence under Section 10 arises. If the challenge fails, the consequence under Section 10 follows the finding in the order under Section 7 that the certificate is false. Similarly, if the order under Section 7 is not challenged, or if the challenge is given up, there is no occasion to protect the benefits secured on the basis of a certificate which is invalidated. The expression "false" must be construed in contra-distinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category.
55. Section 10, it must be noted, provides for the withdrawal of civil benefits which have accrued to an individual on the strength of a claim to belong to a reserved category, when the claim upon due enquiry and verification is invalidated. Section 10, as its marginal note indicates, provides for the withdrawal of benefits secured on the basis of a false caste certificate. Section 11 provides for offences and penalties. The invalidation of a caste certificate may result in two consequences : (i) immediate cancellation or withdrawal of the benefits received by the candidate on the basis of a false caste certificate; (ii) prosecution of a claimant who procures a certificate which is found to be false by the Scrutiny Committee. The intent of a candidate may be of relevance only if there is a prosecution for a criminal offence. However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent. In importing such a requirement, the bench of two Judges in Shalini has, with great respect, fallen into error. The judgment in Shalini must, therefore, be held not to lay down the correct principle. In the very nature of things it would be casting an impossible burden to delve into the mental processes of an ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 19 WP499-17.odt applicant for a caste certificate. As the provisions of the Act indicate, a person, who claims to belong to a reserved category and who seeks the benefit of an appointment to a reserved post or of admission to an educational institution against a reserved seat or any other benefit provided by the provisions of Article 15(4), has to apply for the grant of a caste certificate. The burden of proof that he or she belongs to such a caste, tribe or class lies with the claimant. The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled. The decision in Shalini would result in serious consequences and would eviscerate the statutory provision. The interpretation which has been placed on the provisions of Section 10 by the judgment in Shalini is evidently incorrect."
15. The Hon'ble Supreme Court has not even protected services of the persons who could not be said to have intentionally made a claim of belonging to a particular caste/tribe, but, later they were found not to be belonging to the same. It has been held that there was no relevance of the concept of intention because the falsehood in such cases meant setting up of a claim of belonging to a reserved category while in fact it was ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 20 WP499-17.odt found that the person did not belong to such a category. In such cases also, the Hon'ble Supreme Court has held that the services of such persons could not be protected and that Section 10 of the Act of 2000, pertaining to withdrawal of the benefits obtained by such persons on the basis of false claim, applied to such cases also.
16. In the present case, the orders passed by the Scrutiny Committee and this Court clearly show that the respondent no.1 had actively indulged in falsehood and he committed a fraud by supporting his false claim of belonging to Rajput Bhamta VJNT. By operation of Section 11 of the Act of 2000, even criminal prosecution of such persons is contemplated. This clearly shows that the benefit enjoyed by the respondent no.1 in the form of obtaining employment on the basis of false caste certificate, stood immediately withdrawn by operation of Section 10 of the Act of 2000. The appointment of the respondent no.1 was rendered void ab initio and its approval by the respondent no.2 Education Officer also stood nullified because the order of approval itself specifically stated that it was subject to production of validity certificate by respondent no.1. ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 :::
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17. These facts clearly show that application of the provisions of the Act of 2000 and the law laid down by the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (supra) shows that the very appointment of the respondent no.1 was rendered void and the order of termination of service dated 30.08.2013 was nothing but a consequence of the invalidation of caste certificate of the respondent no.1 by the Scrutiny Committee. The claim of respondent no.1 was found on facts to be false by the Scrutiny Committee as well as this Court.
18. In such a situation, it would be necessary to examine whether the respondent no.1 was entitled to question the said order of termination of service by approaching the School Tribunal under Section 9 of the MEPS Act, when he had already suffered adverse orders from this Court in the challenge raised to the order of the Scrutiny Committee, wherein prayer for protection of service was negatived on the ground that he was not entitled to any relief even on equities. The answer to the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 22 WP499-17.odt said question has to be in the negative. The respondent no.1 was clearly not entitled to claim that the termination of his service was bad in law because enquiry contemplated under Rules 36 and 37 of the Rules framed under the MEPS Act was not conducted against him. This is because the service of the respondent no.1 was not terminated for any action or omission on his part during the period of service with the petitioners, but on the basis that his very appointment was found to be illegal and void due to the order passed by the Scrutiny Committee, invalidating his caste claim and certificate, which stood approved by orders passed by this Court. In the face of the orders of the Scrutiny Committee and this Court as also by applying the provisions of the Act of 2000, coupled with the position of law enunciated by the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (supra), it would be an absolutely untenable situation that an Enquiry committee comprising of the representative of the petitioner no.1 Trust (Management), the respondent no.1 (delinquent) and a State awardee teacher, as required under Rules 36 and 37 of the Rules framed under the MEPS Act, would ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 23 WP499-17.odt inquire into the validity of termination of service of respondent no.1. Therefore, the very filing of the appeal and raising of the aforesaid ground by the respondent no.1 before the School Tribunal would be of no avail, in the facts and circumstances of the present case. Even the ground raised in one single sentence in the appeal memo filed on behalf of the respondent no.1 before the Tribunal that the person who signed the order of termination of service dated 30.08.2013 as President of the petitioner no.1 Trust was not authorized to do so, is also of no avail because, firstly, the very appointment of the respondent no.1 in the school was rendered void by the orders of the Scrutiny Committee and this Court, in view of the provisions of the Act of 2000, secondly because the Tribunal under the MEPS Act had no authority to decide as to whether the contention of the respondent no.1 was correct and thirdly, because the order of termination of service dated 30.08.2013 was also signed by Headmaster of the School run by the petitioner no.1 Trust. In fact, the Headmaster of the said School is petitioner no.2 in the present writ petition.
19. The learned counsel for the respondent no.1 ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 24 WP499-17.odt also placed reliance on Full Bench judgment of this Court in the case of St. Ulai High School .vs. Devendraprasad- 2007 (1) Mh.L.J.597 to contend that the grant of approval by Education Officer was not a condition precedent for validity of the order of appointment, as it concerns only disbursal of grant-in-aid by the State to the Management. Although there is no doubt that merely because withdrawal of approval by the Education Officer would not ipso facto render the appointment order itself invalid, but in the facts and circumstances of the present case what is important is that the appointment of respondent no.1 was subject to the respondent no.1 producing caste validity certificate. This clearly shows that the very appointment of the respondent no.1 on the reserved category of VJNT was based on a caste claim made by him, which was necessarily required to be supported by a valid certificate from the Scrutiny Committee. It is no doubt true that failure on the part of respondent no.1 to produce the caste validity certificate resulted in the approval order passed by the Education Officer in his favour being withdrawn. The consequence of the same would be that the aid from the State for the post held by the respondent ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 25 WP499-17.odt no.1 would stand withdrawn. But, at the same time, the very appointment of the respondent no.1 on the reserved post was rendered invalid, the moment the Scrutiny Committee invalidated his caste claim and directed confiscation of the caste certificate. The said order of the Scrutiny Committee attained finality when the writ petition filed by respondent no.1 was dismissed by this Court. Therefore, the very appointment of respondent no.1 was rendered void and in that context the conditional approval order of the Education officer assumes significance, as it indicated that the very appointment was against a reserved category and when the respondent no.1 was found not belonging to that category, the appointment itself was rendered void ab initio. In fact by operation of the Act of 2000 and the position of law laid down by the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (supra), there was no question of the respondent no.1 claiming that the termination order dated 30.08.2013 issued by the petitioner no.1 could be challenged by way of appeal under Section 9 of the MEPS Act. Hence the contentions raised on behalf of respondent no.1 by ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 26 WP499-17.odt relying on the aforesaid Full Bench judgment of this Court in the case of St. Ulai High School .vs. Devendraprasad (supra) are unsustainable.
20. The learned counsel for respondent no.1 also sought to rely upon an interim order dated 28.08.2018 passed by the Division Bench of this Court in the case of Organization for the Rights of Tribal .s. State of Maharashtra (W.P.No. 3140 of 2018) concerning certain observations made by the Division Bench of this Court in view of G.R. dated 05.06.2018 issued by the respondent/State. The said interim order would be of no assistance to the respondent no.1 because the law laid down by the Bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of Chairman Managing Director, Food Corporation of India .vs. Jagadish Balaram Bahira (supra), clearly lays down that appointments of persons like respondent no.1 were rendered void the moment it was found that the caste claim made by them was invalid. The respondent no.1 specifically sought protection of service before this Court in writ petition filed by him challenging the order of the Scrutiny Committee and the same was rejected with an ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 27 WP499-17.odt observation that since the respondent no.1 had relied on a false claim, he was not entitled for any relief even on equities. Therefore, the contention raised on behalf of respondent no.1 by relying on interim order dated 28.09.2018 in Writ Petition No. 3140 of 2018 (supra) is also unsustainable.
21. The contention raised on behalf of the respondent no.1 that the Tribunal could not have framed a preliminary issue other than the specific three preliminary issues specified in judgment of this Court in Anna Manikrao Pethe .vs. Presiding Officer (supra), is also not sustainable. In the said judgment of this Court, it has been laid down as follows:-
"15. While disposing of this petition, we deem it appropriate to observe that when such applications under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977, are filed before the School Tribunal by the teachers challenging any act of termination on the part of the management, it will be necessary for the Tribunal to frame and decide three preliminary issues, viz., whether the School was a recognised school as defined under the M.E.P.S. Act; whether the appointment of the concerned teacher was made as per Section 5 of the M.E.P.S. Act and the Rules thereunder; and whether such an appointment has been approved by the Education Officer in ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 28 WP499-17.odt pursuance of the provisions of the Act as well as the Rules framed thereunder including the Government Resolutions issued from time to time regarding reservations etc. These preliminary points are required to be framed and decided before the appeal proceeds on merits, and even if such points are not raised by any of the parties to the appeal, it would proper on the part of the Tribunal to frame such issues suo motu before examining the merits of the case. In case the findings to any of the preliminary issues are in the negative, the appeal must fail then and there itself, so far as the relief of reinstatement/continuation in service is concerned."
22. A perusal of the above quoted portion of the judgment of this Court shows that it was deemed to be appropriate to observe that it would be necessary for the Tribunal to frame and decide the three preliminary issues specified by this Court. There is nothing to indicate that this Court laid down the position of law that no preliminary issue other than the aforesaid three preliminary issues could be framed by the Tribunal while considering an appeal under Section 9 of the MEPS Act. The Tribunal would certainly be entitled to consider the question as to whether the appeal filed by an aggrieved employee under Section 9 of the MEPS Act was tenable at all in the facts and circumstances of the case. If it is demonstrated on facts that the appeal itself is rendered ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 29 WP499-17.odt wholly untenable due to occurrence of certain facts and circumstances, the Tribunal would certainly be entitled to examine the question and to give a finding thereon. Reading of the aforesaid judgment of this Court in the case of Anna Manikrao Pethe .vs. Presiding Officer (supra) in a restrictive manner as contended on behalf of respondent no.1 is not sustainable and, therefore, the said contention is rejected. Once it is held that in the facts of the present case, the Tribunal was entitled to consider the preliminary issue as to whether the appeal filed by the respondent no.1 was tenable, it becomes necessary to examine as to whether the reasons given by the Tribunal to hold against the petitioner were justified.
23. A perusal of the impugned order shows that the Tribunal has referred to Sections 9 and 11 of the MEPS Act and it has been held that the contentions raised on behalf of the petitioners could not be decided as a preliminary issue regarding maintainability because they necessarily concern merits of the appeal and that a preliminary objection was required to be decided only on law point. Even if the said conclusion rendered by the Tribunal is to be accepted, it becomes obvious that the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 30 WP499-17.odt Tribunal ought to have accepted the preliminary objection raised by the petitioners as they had placed on record material to show that the appointment of the respondent no.1 itself was rendered void because the appointment was contingent upon producing validity certificate and also because conditional approval was given by the respondent no.2- Education Officer, as also by operation of the provisions of the Act of 2000 read in the light of the orders passed by the Scrutiny Committee.
24. If the impugned order is sustained, persons like respondent no.1 whose caste claims have been found to be invalid based on findings of falsehood and fraud against them, would still institute and continue proceedings before the Tribunal under Section 9 of the MEPS Act to challenge termination of their services, even when the very inception into service and their appointments are found to be void and untenable. This would lead to a situation where the Enquiry Committee contemplated under Rules 36 and 37 of the Rules framed under the MEPS Act, would be required to consider the validity of the findings rendered by the Scrutiny Committee and this Court. It is clear that the Enquiry ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 02:05:33 ::: 31 WP499-17.odt Committee would have no jurisdiction to do so and even the Tribunal under Section 9 of the MEPS Act would not go into the merits of the findings rendered by the Scrutiny Committee and this Court against the respondent no.1, which have admittedly attained finality.
25. The Tribunal failed to appreciate these aspects of the present case, while passing the impugned order and rejecting the application of the petitioners, thereby holding that the appeal filed by the respondent no.1 was maintainable.
26. In the light of the above, the impugned order passed by the Tribunal is found to be wholly unsustainable and accordingly the same is quashed and set aside. The application filed by the petitioners before the Tribunal is consequently allowed and the appeal filed by the respondent no.1 is dismissed. The present writ petition is accordingly allowed in favour of the petitioners.
27. Rule made absolute in the above terms with no order as to costs.
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28. Since the learned counsel appearing on behalf of respondent no.1 is appointed through legal aid, her fees is quantified at Rs.5000/-.
(Manish Pitale, J. ) ...
halwai/p.s.
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