Bombay High Court
Smt. Sarita Wd/O Vijay Giri vs Divisional Caste Scrutiny Thr. Its ... on 20 April, 2016
Author: Vasanti A. Naik
Bench: Vasanti A. Naik
1 wp43.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.43/2016
Smt. Sarita wd/o Vijay Giri,
aged about 46 years, Occ. Service,
r/o Plot No. 3/7, V.H.B. Colony, Raghuji
Nagar, Chhota Tajbag Road, Nagpur. .....PETITIONER
...V E R S U S...
1. Divisional Caste Scrutiny Committee
No.3, Nagpur Division, Nagpur,through
its Member-Secretary.
2. Senior Treasury Officer,
Nagpur Treasury Nagpur. ...RESPONDENTS
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Mr. N. D. Thombre, Advocate for petitioner.
Mr. N. R. Rode, Assistant Government Pleader for respondents.
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CORAM:- SMT. VASANTI A. NAIK AND
V. M. DESHPANDE, JJ.
DATED :- APRIL 20, 2016
ORAL JUDGMENT (Per : Smt. Vasanti A. Naik, J.)
Rule. Rule made returnable forthwith. Heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. By this writ petition, the petitioner seeks the protection of her services on the post of Junior Clerk. The petitioner has challenged the order of proposed termination, dated 24.11.2015.
3. The husband of the petitioner, Shri Vijay Giri was working ::: Uploaded on - 25/04/2016 ::: Downloaded on - 29/07/2016 23:02:51 ::: 2 wp43.16.odt as a Forest Guard in the Forest Department of the State Government.
The husband of the petitioner expired while in service on 03.05.1999.
After the death of the husband of the petitioner, the petitioner applied to the Collector, Nagpur for appointment on compassionate ground.
The Collector, Nagpur recommended the name of the petitioner for appointment on the post of Junior Clerk to the respondent no.2 i.e. the Senior Treasury Officer, Nagpur. Accordingly, after completing the formalities, the petitioner was appointed on 16.08.2004 on the post of Junior Clerk. The appointment order mentioned that the appointment of the petitioner was on a post reserved for the Nomadic Tribes. Since, the husband of the petitioner had claimed to belong to Gosavi-
Scheduled Tribe, the caste claim of the petitioner was referred by the respondent no.2 to the Scrutiny Committee for verification. The Scrutiny Committee invalidated the caste claim of the petitioner by an order dated 24.07.2014. After the Scrutiny Committee invalidated the caste claim of the petitioner, the respondent no.2 proposed to terminate the services of the petitioner. The petitioner has challenged the order of proposed termination and has sought a direction to the respondent no.2 to protect her services as she was appointed on compassionate ground and the appointment could not have been made in a reserved category.
4. Mr. Thombre, the learned counsel for the petitioner submitted that the husband of the petitioner was working as a Forest ::: Uploaded on - 25/04/2016 ::: Downloaded on - 29/07/2016 23:02:51 ::: 3 wp43.16.odt Guard and due to his sad demise while in service, the petitioner was granted compassionate appointment. It is stated that compassionate appointment could not have been grated on a post reserved for the Nomadic Tribes. It is stated that there was no rule, regulation or Government policy till the year 2004, when the petitioner was appointed, to appoint a dependent on compassionate ground in a reserved post. It is submitted that the caste claim of the petitioner was invalidated as the petitioner had not produced the documents to show that the petitioner originally resided in the State of Maharashtra. It is stated that there is no observation of fraud recorded in the order of the Scrutiny Committee. According to the learned counsel, since the petitioner was appointed only on compassionate ground and since the appointment on compassionate ground could not have been made in the year 2004 by applying the reservation policy, the impugned order is liable to be set aside.
5. Mr. Rode, the learned Assistant Government Pleader appearing for the respondents supported the action of the respondents and submitted that since the husband of the petitioner was appointed on a post reserved for the Nomadic Tribes, the petitioner's appointment was also considered to have been made on a post reserved for the Nomadic Tribes. It is stated that it is mentioned in the appointment order that the petitioner was appointed on a post earmarked for the ::: Uploaded on - 25/04/2016 ::: Downloaded on - 29/07/2016 23:02:51 ::: 4 wp43.16.odt nomadic tribes. It is stated that in this background, the relief sought by the petitioner cannot be granted to her.
6. On hearing the learned counsel for the petitioner, it appears that the services of the petitioner are required to be protected. The husband of the petitioner had expired in the year 1999 and the petitioner was appointed on compassionate ground. Since the petitioner was appointed on compassionate ground, the reservation policy could not have been applied by the respondent nos. 1 and 2 while making the appointment of the petitioner in the year 2004. There is nothing placed by the respondents on record to show that as per the policy of the State Government in the year 2004, compassionate appointments could be made only by adhering to the reservation policy.
This Court has held in some of the decided writ petitions that the reservation policy cannot be applied for the compassionate appointments that are made before the issuance of the resolution by the State Government on 18.05.2013. Since, the appointment of the petitioner was made in the year 2004, the reservation policy could not have been applied while making the appointment of the petitioner on compassionate ground. Merely because there was a mention in the appointment order that the petitioner was appointed on a post reserved for the Nomadic Tribes, the action of the respondents in appointing the petitioner on a post earmarked for the Nomadic Tribes cannot be ::: Uploaded on - 25/04/2016 ::: Downloaded on - 29/07/2016 23:02:51 ::: 5 wp43.16.odt upheld. In the absence of any policy, the appointment of the petitioner could not have been made on a post reserved for the Nomadic Tribes since her appointment was made on compassionate ground before framing of the Government Resolution dated 18.05.2013. Also, we find that there is no adverse observation against the petitioner in the order of the Scrutiny Committee while invalidating the caste claim of the petitioner and the caste claim is invalidated as the petitioner was not able to produce the documents showing that she was a permanent resident of the State of Maharashtra, before the relevant date.
7. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order of proposed termination and the order of termination of the services of the petitioner are quashed and set aside.
The appointment of the petitioner should be considered from the open category.
Rule is made absolute in the aforesaid terms with no order as to costs.
(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.)
kahale
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