Bombay High Court
Ku. Vijaya Deorao Nandanwar vs Chief Officer on 10 July, 2013
Author: Anoop V. Mohta
Bench: Anoop V. Mohta, Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION Nos. 5530 OF 2012, 5031 OF 2012,
1511 OF 2013 and 4274 OF 2012
(1) W.P. No. 5530/12
PETITIONER :- Ku. Vijaya Deorao Nandanwar,
aged about 33 years, Occupation service,
r/o Gurudeo Nagar, Burade Layout,
Near Deshmukh Wadi, Near Nikhar Kirana Stores,
Post Manas Mandir, Wardha, Distt. Wardha.
...VERSUS...
RESPONDENT :- Chief Officer,
Municipal Council, Wardha.
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Mr. S.R. Narnaware Advocate for the Petitioner.
Mr. Abhay Sambre Advocate for the Respondent.
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( 2) W.P. No. 5031/12
PETITIONER :- Raju s/o Laxman Gadekar,
aged 49 years, r/o Ward No.1,
"Ashirwad", Dongaon, Tah. Mehkar,
District Buldana.
...VERSUS...
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RESPONDENTS :- (1) State of Maharashtra,
through its Secretary, Department of
Education, Mantralaya, Mumbai.
(2) Shri Shivaji High School & Jr. College,
Dongaon, Tah. Mehkar, Distt. Buldana,
through its Head Master.
(3) Shri Shivaji Shikshan Sanstha, Dongaon,
ig Tah. Mehkar, Distt. Buldana,
through its President.
(4) The Education Officer (Secondary),
Zilla Parishad, Buldana.
Mr. C.S. Kaptan Senior Advocate assisted by Mr. Prafulla S. Khubalkar
Advocate for Petitioner.
Mr. A.D. Sonak, AGP, for respondents 1 and 4.
Mr. S.C./A.S. Mehadia Advocate for respondents 2 and 3.
(3 ) W.P. No. 1511/13
PETITIONER :- Ku. Chhaya d/o Hemraj Nimje,
aged 43 years, Occ.: Service as Teacher,
Bhimrao Bapu Deshmukh Adarsh Vidyalaya,
Kelvad, Tahsil Saoner, District Nagpur.
...VERSUS...
RESPONDENTS :- (1) The Scheduled Tribe Caste Certificate
Scrutiny Committee, Nagpur.
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(2) The Education Officer (Secondary),
Zilla Parishad, Nagpur.
(3) Jaibharat Shikshan Prasarak Mandal, Kelvad,
Tahsil Saoner, District Nagpur.
(4) Bhimrao Bapu Deshmukh Adarsh Vidyalaya,
Kelvad, Tahsil Saoner, District Nagpur.
Through its Head Master.
Mr. A.C. Dharmadhikari Advocate for Petitioner.
Mr. Ravindra Adsure and Mr. P.B. Patil Advocates for Respondent no. 1.
Ms. P.D. Rane, AGP, for Respondent no. 2.
Mr. A.Z. Jibhkate Advocate for Respondents 3 and 4.
(4 ) W.P. No. 4274/12
PETITIONER :- Mrs. Arundhati w/o Suresh Ninawe,
aged about 44 years, Occ. Lecturer in
L.R.T. College of Commerce, Akola,
r/o Plot No. 3, Gyaneshwari Apartment,
Khedkar Nagar, Akola.
...VERSUS...
RESPONDENTS :- (1) Joint Director of Higher Education,
Amravati Division, Amravati.
(2) Smt. L.R.T. College of Commerce, Akola,
through its Principal,
Ratanlal Plots, Akola.
Mr. R.S. Parsodkar Advocate for the Petitioner.
Mrs. M.N. Hiwase AGP for respondent no.1.
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CORAM : Anoop V. Mohta & Z.A. Haq,JJ.
DATED : 05th, 8th, 9th & 10th July, 2013.
ORAL JUDGMENT (Per Anoop V. Mohta, J.) :
Rule returnable forthwith. Heard finally with the consent of the parties along with connected matters, therefore, a common judgment, as facts and circumstances are similar and so also the referred and the relied judgments and the laws.
2. By this petition, the petitioner (in W.P. No. 5530/12) has invoked Articles 226 and 227 of the Constitution of India and prayed as under :
"Protect the services of the petitioner in view of latest judgment of the Hon'ble Supreme Court in case of Kavita Solunke in SLP No. 5821/12 decided on 9.8.2012 (Annexure No.6), reported in 2012(5) Mh.L.J. 921 by quashing and setting aside the termination order dated 18.2.2010 issued by the respondent (Annexure no. 5 ) and reinstating the petitioner in the services as Assistant Teacher, in the interest of justice."
3. The petitioner was appointed as an Assistant Teacher by the respondent/Chief Officer, Municipal Council, Wardha, against the vacancy reserved for Scheduled Tribe category based upon a caste certificate belonging to "Halba- Scheduled Tribe" on 29.7.1998. The petitioner was working on the post accordingly. The ::: Downloaded on - 27/08/2013 21:05:47 ::: 5 wp5530.12.odt respondent/management withhold the salary of the petitioner for non production of the caste certificate (The certificate) which was pending since 2002. By order dated 18.7.2005, this Court directed the Caste Scrutiny Committee (The Committee) to dispose of petitioner's case within a period of four months with the observation that "if the report is adverse, it will be open for the respondents to take such steps as are permissible in law."
4. By order dated 7.11.2009, after considering the material, the following conclusion was recorded-
"16. After considering all the documents, facts, Police Vigilance Cell report, School record, wherein the caste of the candidate's father and real paternal younger uncle had been recorded as `Koshti', prior to the proclamation of the Scheduled Tribes Order, 1950 and in exercise of power vested vide Maharashtra Act No. XXIII of 2001, the Caste Scrutiny Committee has come to the conclusion that Ku.
Vijaya Deorao Nandanwar does not belong to the Halba, Scheduled Tribe and hence her claim towards the same is held invalid. Her Caste Certificate granted/issued by the Executive Magistrate, Narkhed, Distt. Nagpur, vide cert.
No. 193/MRC-81/92-93, dated 21.8.1992 is hereby cancelled. "
5. The petitioner, therefore, challenged the order in W.P. No. ::: Downloaded on - 27/08/2013 21:05:47 ::: 6 wp5530.12.odt 5008/09. After hearing the parties including the State of Maharashtra, the writ petition was rejected by the following short order.
"Present is a case where petitioner does not show that she is of a tribal origin, and has migrated outside. On petitioner's own version, it is not a case of confusion or failure to prove tribe claim, rather it is a case that to her own knowledge and to her father's knowledge, she belongs to caste Koshti and secured a certificate of being Halba Scheduled Tribe. Thus, the petitioner has usurped the chances of a genuine tribal candidate, and she is not entitled for protection in the employment. The case law relied upon by the petitioner does not help her. Even on this count, petitioner has no case. In the result, Rule is discharged. "
6. Admittedly, the petitioner was terminated as the Committee had invalidated her caste certificate declaring the petitioner belongs to "Koshti" caste and not "Halba" on 7.11.2009. The decision was confirmed by this Court and lastly by rejecting even the Review on 2.7.2010. She could not take it further for the reasons averred in the petition. Every time it is not possible and affordable to challenge every order to higher courts. No point in discussing undisclosed or disclosed reason for the same.
7. The petitioner filed the present petition based upon Kavita ::: Downloaded on - 27/08/2013 21:05:47 ::: 7 wp5530.12.odt Solunke v. State of Maharashtra & ors.1 decided on 9.8.2012, seeking protection of service, apart from prayer to quash and set aside the termination order. The reliance is also placed upon the Hon'ble Supreme Court (Supreme Court) order passed in Deepak v. Union of India & ors. (Civil Appeal No. 1298/10) by the three Judges Bench of Supreme Court, where the observations are as under :
"I.A. No. 3 of 2013 has been filed in the pending special leave th petition, which was directed against an order dated 14 October, 2009, passed by the Nagpur Bench of the Bombay High Court, in W.P. No. 1072 of 2007.
The contention of the writ petitioner in the writ petition was that he belonged to the Halba Tribe, but he had not been given the benefit thereof, since his caste certificate was invalidated by the th Scrutiny Committee vide its order dated 9 February, 2007.
The petitioner had prayed for setting aside the order of the Scrutiny Committee, as confirmed by the High Court. However, the High Court was also not convinced of the petitioner's case and, accordingly, dismissed the writ petition, against which the petitioner is before this Court.
In this pending matter, the petitioner has filed two interlocutory applications, being I.A. Nos. 2 and 3 of 2013, in which a particular th Office Memorandum dated 10 August, 2010, has been annexed.
1 2012(5) Mh.L.J 921 ::: Downloaded on - 27/08/2013 21:05:47 ::: 8 wp5530.12.odt The said Memorandum had been issued by the Government of India in its Ministry of Personnel, Public Grievances and Pensions in the Department of Personnel and Training. The said Office Memorandum deals directly with the subject at issue in these proceedings and in paragraph 3 of the Memorandum, it has been indicated that the matter had been examined in consultation with the Department of Legal Affairs and it had been decided that persons belonging to "Halba Koshti/Koshti" caste, who had been appointed earlier against vacancies reserved for the Scheduled Tribes on the basis of Scheduled Tribe certificates, issued to them from the Competent Authority under the Constitution (Scheduled Tribes) Order, 1950, and whose appointments had become final on or before 28th November, 2000, would not be affected. The only clarification made was that they would not get any benefit of reservation after 28th November, 2000.
Appearing in support of the two interlocutory applications, Mr.Shekhar Naphade, learned senior counsel, submitted that the special leave petition itself could be disposed of on account of the aforesaid Office Memorandum and the respondents could be directed to apply the same, as far as the petitioner is concerned.
The submission appears to be quite reasonable and has also been accepted on behalf of the respondent. Accordingly, the special leave petition is disposed of, with a direction upon the respondents to ::: Downloaded on - 27/08/2013 21:05:47 ::: 9 wp5530.12.odt apply the Office Memorandum dated 10th August, 2010, referred hereinabove, to the case of the petitioner also."
8. Everyone conceded to the situation as recorded above. No issue left if facts are similar. The petitioner, admittedly, is out of service since February, 2010. The petitioner has been praying and appealing for the similar benefits. The Supreme Court in Kavita (supra) on the basis of similar caste and considering all earlier judgments for and against the protection referred and relied, directed the reinstatement in service subject to the conditions mentioned therein, without dealing with any aspects of delay or laches.
The Constitution Bench granted protection/but not further caste privileges
9. This Court granted the reservation benefits by treating "Halba-Koshti" - Scheduled Tribe". The same situation was continued till the Constitution Bench of the Supreme Court adjudicated the issue 1 otherwise in Milind v. State of Maharashtra - (Milind). The operative part of Milind is as under:
"Respondent no. 1 joined the medical course for the year 1985-86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practising as doctor. In this view and at this length of time it is for nobody's 1 1987 Mh.L.J. 572 ::: Downloaded on - 27/08/2013 21:05:47 ::: 10 wp5530.12.odt benefit to annul his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to respondent no. 1. If any action is taken against respondent no.1, it may lead depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practicing as a doctor. But we make it clear he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372/85 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment."
(emphasis added) The Courts - granted protection/not granted protection.
10. The learned counsel appearing for the respondents have opposed the prayers on various grounds by referring to the earlier decisions of this Court between the parties and the other judgments of Supreme Court as well as of this Court, where no such protection was ::: Downloaded on - 27/08/2013 21:05:47 ::: 11 wp5530.12.odt granted. The petitioner has also relied upon the judgment of this Court 1 in A.P. Ramtekkar v. State of Maharashtra - [dtd. 1.11.2012] (B.R.Gavai & S.B. Deshmukh, JJ) and the other side on Rajendra v. State of 2 Maharashtra - [dtd. 11.3.2013] (B.P.Dharmadhikari & P.B. Varale, JJ.) and Archana Dadarao Pethkar v. Joint Commissioner & Vice Chairman, 3 Scheduled Tribe Certificate Scrutiny Committee & anr . - [decided on 5.4.2013] (B.P. Dharmadhikari & A.B. Chaudhari, JJ.) and the cases referred therein.
11. The judgment - A.P. Ramtekkar (supra) not referred in Rajendra (supra); the subsequent judgment in Archana (supra) the same Division Bench referred it but refused to give protection in employment by relying upon the Full Bench judgment in Ganesh Rambhau Khalale v. State of Maharashtra & ors.4 , apart from Supreme 5 Court judgments in Union of India & anr. v. Maniklal Banerjee , Vijay Deorao Nandanwar v. State of Maharashtra & ors 6 and State of 7 Maharashtra & ors. v. Sanjay K. Nimje - and also Section 10 of The Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jati), Nomadic Tribes, Other Backward Classes and Special 1 2013(2) Mh.L.J. 415 2 2013(3) Mh.L.J. 393 3 2013(3) Mh.L.J. 764 4 2009(2) Mh.L.J. (FB) 788 5 2007(7) SCALE 386 6 2010(2) Mh.L.J. 424 7 2007(3) Mh.L.J. 795 ::: Downloaded on - 27/08/2013 21:05:47 ::: 12 wp5530.12.odt Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, (Maharashtra Act No. XXIII of 2001), which is in force from 18.10.2001. The judgments read and referred by the learned Judges but have taken different views, based upon the facts and circumstances of each case. The Division Bench judgment in A.P. Ramtekkar (supra) is confirmed by a three Judges bench of Supreme Court. It was dismissed after hearing both the parties by observing that there is no legal and valid ground for interference. This rejection of SLP was not brought on record and/or noted in Rajendra and Archana (supra).
12. The cause of action for or against the party, one who wants protection in employment is based upon a valid caste certificate.
In the present case, we have to deal with a situation where the petitioners were appointed prior to 28.11.2000 based upon the caste certificate so issued at the relevant time by the authority concerned and in view of then existing law. The petitioner got the benefits as "belongs to Scheduled Tribe". On and before 28.11.2000, the petitioner completed two years of service and therefore claimed to be deemed to have been confirmed in service as per Section 5(2) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The petitioner got her right crystalized in view of the observations of Constitution Bench (Milind) (supra) along with other similarly placed employees who got protection based upon the same.
::: Downloaded on - 27/08/2013 21:05:47 ::: 13wp5530.12.odt Facts based decisions
13. The Senior Counsel Mr. A.M.Gordey and Mr. Sunil Manohar, amicus curiae, persuaded with their able and valuable arguments that the facts and circumstances of each case need to be considered to pass appropriate order/relief even on merits of the matter.
We have appreciated it; and also the valuable submissions made by the advocates appearing for the parties. We have to consider and, as rightly pointed out by all the advocates of the parties appearing in the respective matters that facts, events and circumstances need to be considered and, therefore, there is no need to refer the matter to a larger bench.
14. One thing is clear from all these judgments that the Court needs to consider the facts first and then the respective provisions of law and the judgments. It is not a Public Interest Litigation being a matter of service/employment. The petitioners have been claiming their individual rights based upon the caste certificates. The respondents/managements have taken action against the petitioner based upon the subsequently invalidated caste certificates.
The Full Bench interpreted the operative part of the Constitution Bench decision (Milind) ::: Downloaded on - 27/08/2013 21:05:47 ::: 14 wp5530.12.odt
15. The Full Bench judgment (Ganesh) is of the year 2009.
The subsequent judgments of supreme court, as well as, of this Court granting protection in spite of the Full Bench judgment are many. Some of them are - Damodhar v. Industrial Energy & Department & ors. in Civil Appeal No. 2889/09; Deepak v. Union of India dated 22.1.2010; Dattu 1 Namdeo Thakur v. State of Maharashtra & ors . decided on 7.12.2011;
Kavita (supra), apart from the Division Bench judgments including A.P. Ramtekkar & ors. (supra), where protection have been extended. The judgments where the protection were not granted are Archana (supra), Rajendra (supra) and the cases referred therein including those of supreme court.
The reinforcement and enforcement of Supreme Court Constitutional Bench decision
16. The petitioner has placed strong reliance on Kavita (supra). Therefore, we have to consider the case in detail whereby protection has been extended based upon Milind (supra). In that case also, the Committee declared that the appellant was "Koshti" by caste and not "Halba", which was a notified Scheduled Tribe. Similar is the case in hand. In that case, the appellant was appointed in the year 1995 based upon the then existing certificate. In the present case she was appointed on 29.7.1998. The Scrutiny Committee noted in that case that 1 (2012) 1 SCC 549 ::: Downloaded on - 27/08/2013 21:05:47 ::: 15 wp5530.12.odt appellant's father was "Koshti" which was not a Scheduled Tribe in Maharashtra. The Committee invalidated the caste certificate by order dated 23.2.2008 and therefore the service of the appellant was terminated. The School Tribunal dismissed the appeal. The High Court also did not interfere with the order and also the decision of caste scrutiny committee. Therefore, S.L.P. was preferred by Kavita.
17. The Supreme Court in Kavita (supra) even after referring to the subsequent anti protection decisions including R. Vishwanatha Pillai v. State of Kerala1; State of Maharashtra v. Sanjay K. Nimje 2 (supra); Bank of India v. Dattatray and also by referring to the Government Circular as applied, has in para 13, 15, 16 and 17, observed as under :
"13. We find merit in that contention. If 'Halba-Koshti' has been treated as "Halba" even before the appellant joined service as a Teacher and if the only reason for her ouster is the law declared by this Court in Milind's case, there is no reason why the protection against ouster given by this Court to appointees whose applications had become final should not be extended to the appellant also. The Constitution Bench had in Milind's case noticed the background in which the confusion had prevailed for many years and the fact that appointments and admissions were made for a long time treating 1 (2004) 2 SCC 105 2 (2008) 4 SCC 612 ::: Downloaded on - 27/08/2013 21:05:47 ::: 16 wp5530.12.odt 'Koshti' as a Scheduled Tribe and directed that such admissions and appointments wherever the same had attained finality will not be affected by the decision taken by this Court. After the pronouncement of judgment in Milind's case, a batch of cases was directed to be listed for hearing before a Division Bench of this Court. The Division Bench eventually decided those cases by an order dated 12th December 2000 (State of Maharashtra v. Om Raj1 ) granting benefit of protection against ouster to some of the respondents on the authority of the view taken by this Court in Milinds case. One of these cases, namely, Civil Appeal No. 7375/2002 arising out of SLP No. 6524 of 1998 related the appointment of a 'Koshti' as an Assistant Engineer against a vacancy reserved for a 'Halba/Scheduled Tribe candidate'. This court extended the benefit of protection against ouster to the said candidate also by a short order passed in the following words:
"4. Leave granted.
5. The appellant having belonged to Koshti caste claimed to be included in the Scheduled Tribe of Halba and obtained an appointment as Assistant Engineer. When his appointment was sought to be terminated on the basis that he did not belong to Scheduled Tribe by the Government a writ petition was filed before the High Court challenging that order which was allowed. That order 1 (2007) 14 SCC 488 ::: Downloaded on - 27/08/2013 21:05:47 ::: 17 wp5530.12.odt is questioned in this appeal. The questions arising in this case are covered by the decision in State of Maharashtra v. Milind and were got to be allowed, however, the benefits derived till now shall be available to the appellant to the effect that his appointment as Assistant Engineer shall stand protected but no further. The appeal is disposed of accordingly."
15. Our attention was drawn by counsel for the respondents to the decision of this Court in Addl. General Manager/Human Resource BHEL v. Suresh Ramkrishna Burde (2007) 5 SCC 336 in which the protection against ouster granted by the decision in Milind's case was not extended to the respondent therein. A bare reading of the said decision, however, shows that there is a significant difference in the factual matrix in which the said case arose for consideration. In Burde's case, the Scrutiny Committee had found that the caste certificate was false and, therefore, invalid.
That was not the position either in Milind's case nor is that the position in the case at hand. In Milind's case, the Scrutiny Committee had never alleged any fraud or any fabrication or any misrepresentation that could possible disentitle the candidate to get relief from the Court. In the case at hand also there is no such accusation against the appellant that the certificate was false, fabricated or manipulated by concealment or otherwise. Refusal of a benefit flowing from the decision of this Court in Milind's case may, ::: Downloaded on - 27/08/2013 21:05:47 ::: 18 wp5530.12.odt therefore, have been justified in Burde's case but many not be justified in the case at hand where the appellant has not been accused of any act or omission or commission of the act like the one mentioned above to disentitle her to the relief prayed for. The reliance upon Burde's case (supra), therefore, is of no assistance to the respondent. ...
16. Applying the above to the case at hand we do not see any reason to hold that the appellant had fabricated or falsified the particulars of being a Scheduled Tribe only with a view to obtain an undeserved benefit in the matter of appointment as a Teacher.
There is , therefore, no reason why the benefit of protection against ouster should not be extended to her subject to the usual condition that the appellant shall not be ousted from service and shall be reinstated if already ousted, but she would not be entitled to any further benefit on the basis of the certificate which she has obtained and which was 10 years after its issue cancelled by the Scrutiny Committee.
17. In the result, we allow this appeal, set aside the order passed by the High Court and direct the re-instatement of the appellant in service subject to the condition mentioned above. We further direct that for the period the appellant has not served the institution which happens to be an aided school shall not be entitled to claim any salary/back wages. She will, however, be entitle to ::: Downloaded on - 27/08/2013 21:05:47 ::: 19 wp5530.12.odt continuity of service for all other intents and purposes. The respondent shall do the needful within a month from the date of this order...... "
"Facts do not change because they were ignored."
18. Facts do not change because they were ignored and so also the law. Equal treatment to equally placed persons is the criteria then the exercise of discretion should be in favour of granting protection based upon Milind (supra). As noted, even by referring to the other judgments whereby protections have been denied based upon the facts, the Supreme Court has granted protection to Halba-Koshti and so also the High Court because all have similarly placed situation and the rights.
The re-enforcement of Milind by the recent judgments of Supreme Court, therefore, have binding effect on all. Article 144 of Constitution of India just cannot be overlooked while referring to Articles 141 and 142.
The recent orders passed by the Supreme court reinforcing the Milind, in our view, clinches the issue. The effect of supreme court judgment in Deepak and Solunke and the Circulars referring to Halba-Koshti also cannot be overlooked. The High Court just cannot deny right flowing from Milind to other similarly situated persons.
Similar Facts - Similar Reliefs
19. The doctrine of equality and equal protection and the equal ::: Downloaded on - 27/08/2013 21:05:47 ::: 20 wp5530.12.odt benefits flow from Article 14 of the Constitution of India. Therefore, this right needs to be given preference over or respected over the doctrine of "res judicata" or "estoppel" which are the off-shoots of the procedural law. The discretion or power of Articles 226 and 227 means and includes wide enough jurisdiction to extend similar benefits or protection on all equally situated cases. The doctrine of "estoppel" and "res judicata" are not applicable to such cases. In Kavita (supra) relief has not been granted for the first time, but it has reinforced Milind (supra) along with others. Those judgments by which the protection has been denied are basically revolving around "Ganesh" (supra).
20. The High Court- the Division Bench or Single Bench are bound by the Full Bench judgment. But subsequent supreme court judgments by accepting "Milind", have been granting protection regularly in similarly situated matters. It is difficult to overlook the reasoned and detailed judgment of Supreme Court.
21. It is settled that the lower courts are bound by the judgments/orders passed by the High Court. The High Courts are bound by the judgments/orders passed by the Supreme Court. The "doctrine of binding effect" is elaborated again in Subhashchandra & anr. v. Delhi 1 Subordinate Services Selection Board & ors. Para 107, 108 and 110 thereof reads as under :
"107. The question is a difficult one. On the one hand, this 1 (2009) 15 SCC 548 ::: Downloaded on - 27/08/2013 21:05:47 ::: 21 wp5530.12.odt Court emphasises the need for speaking in one voice and/or adhereing to the doctrine of certainty so as not only to enable this Court but also the High Courts and the subordinate courts to know exactly what the law is, and on the other hand, it is now trite that having regard to the binding nature of the doctrine of stare decisis, whether we would be bound by our own decision and to what extent.
(See Milind where in view of the constitutional scheme, even the doctrine of stare decisis was not followed. See also India Cement Ltd. v. State of T.N. And Synthetics and Chemicals Ltd. v. State of U.P.).
108. In Central Board of Dawoodi Bohra Community v. State of Maharashtra [(2005) 2 SCC 673] , Lahoti, C.J. (as he then was) speaking for a Constitution Bench following its earlier decision in Union of India v. Raghubir Singh [(1989) 2 SCC 754], stated : (SCC pp. 682-83, para 12) "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.::: Downloaded on - 27/08/2013 21:05:47 ::: 22
wp5530.12.odt (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being place for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the once which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions :
(i) the above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine ::: Downloaded on - 27/08/2013 21:05:47 ::: 23 wp5530.12.odt the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh (Union of India v. Raghubir Singh, (1989) 2 SCC 754 and Hansoli Devi [Union of India v. Hansoli Devi, (2002) 7 SCC 273].
110. Should we consider Pushpa [S. Pushpa v.
Sivachanmugavelu, (2005) SCC (L&S) 327] to be an obiter following the said decision is the question which arises herein. We think we should. The decision referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. ........ "
22. There are views even of Supreme Court in which no protection of service/admissions were granted. It is again upon the facts and circumstances of each case, the supreme court had extended and or refused to extend protection. There are number of judgments of this Court where the relief/protections have been granted and there are judgments where no protections have been extended.
23. The Supreme Court in Chandramohan Pandurang Kajbaje 1 v. State of Maharashtra & ors. in paragraph 15, held as under :
"It appears that both the Makasi's case and Kajbaje's case (supra) were brought to the notice of the Division Bench of the High Court, but we notice with dismay that the High Court has brushed aside the judgment of the Supreme Court on the ground that the said 1 2008 AIR SCW 619 ::: Downloaded on - 27/08/2013 21:05:47 ::: 24 wp5530.12.odt observations of the Supreme Court are only an obiter dicta and they cannot be treated as ratio decidendi. It is most unfortunate. The High Court has failed to take note of the fact that a direction was issued by this Court. It appears that the High Court did not care to read the judgment of this Court in between the lines in Makasi's case followed by Kajbaje's case. This is where the High Court went wrong creating multiplicity of litigation instead of giving a quietus to the litigation." (emphasis added)
24. When we talk about the judicial discipline, this means the lower courts are bound by the judgments given by the higher courts. It is also settled that the doctrine of "obiter dicta" and or directions or order given by the supreme court needs to be respected by the courts.
25. However, the Full Bench in Ganesh (supra) while answering the reference, has recorded the following conclusions :
"(i) The observations/directions issued by the Supreme Court in para 36 (para 38 of Bom.C.R.] of the judgment in the case of State v. Milind, reported in 2001 (1) Bom. C.R. 620 is not the 'law declared by the Supreme Court' under Article 141 of the Constitution of India.
(ii) The said observations/directions are issued in exercise of powers under Article 142 of the Constitution.
(iii) The said observations/directions have no application to the cases relating to appointments and are restricted to the cases ::: Downloaded on - 27/08/2013 21:05:47 ::: 25 wp5530.12.odt relating to admissions.
(iv) The protection, if any, to be granted in the facts and circumstances of the case would depend upon the exercise of discretion by the Supreme Court under Article 142 of the Constitution. As the powers under Article 142 are not available to the High Court no protection can be granted by this Court even in cases relating to admissions."
We decline to discuss further on this issue as the above declaration of Supreme Court in Chandramohan (supra) has already made the position for all very clear. We have no prerogative but obligation to follow the Supreme Court's judgments.
The Caste invalidation - no Reservation/Protection to continue
26. We are confronted with the judgments given by this Court as well as and by the earlier judgments of supreme court. Taking into account the cases against grant/extension of protection, and or against the protection, the question of exercising jurisdiction under Articles 226 and 227, in our view, should be in favour of supreme court judgments which are in the field till this date in favour of protection/relief. The earlier view of the supreme court and of High Court, in our view, by which protection as prayed in service/admission not granted, has been diluted by the reasoned binding judgments. The extension of protection by Supreme Court in cases where basic cause of action, as ::: Downloaded on - 27/08/2013 21:05:47 ::: 26 wp5530.12.odt contemplated in Milind, arose prior to 28.11.2000, just cannot be overlooked while passing the order in similarly situated employees/students matter. The privilege arising out of the certificate Halba-Koshti/Koshti, Scheduled Tribe, though taken away by Milind, but in view of the clear decisions and reasons for granting protection to those who possessed/obtained certificate at the relevant time, and having long service tenure just cannot be taken away by overlooking the consistent visualization and conclusion of the Supreme Court.
Reasoned Supreme Court's Judgment - Secure all
27. Learned senior counsel, Mr.C.S.Kaptan, has also rightly pointed out the scope and effect of Article 144 of Constitution of India.
The binding judgments/orders of supreme court cannot be overlooked.
The judicial discipline required that the protection so granted needs to be extended to all the similarly placed- petitioner/employees/students.
The equal protection and equality basically to the persons/ parties/students equally situated is one of the foundation of Article 14 of the Constitution. The submission referring and revolving around the non-binding effect, and or a particular view to refuse protection needs to be rejected. There is no justification to overlook this doctrine of granting protection to the similarly situated persons. They have a legal and fundamental right to claim the same reliefs. No State or authority can deny the said claim by overlooking the doctrine of binding effect.
::: Downloaded on - 27/08/2013 21:05:48 ::: 27wp5530.12.odt Once the right flowing from Article 14 of Constitution crops up, we are of the view that the High Court has no option but to grant protection, as the case is made out.
28. The respondents including Union of India and or State of Maharashtra are bound by the doctrine of binding force and the estoppel. They ought not to have opposed the protection/relief; infact they are also supporting it. The supreme court in Kavita (supra) granted protection after noting that the appellant belonged to Koshti caste and not Halba by dealing with the earlier judgments placed by rival parties to oppose the appellant's case for protection. Union of India and State of Maharashtra were also the parties. Their submission that it was based upon the facts and circumstances of the case and, therefore, protection cannot be granted to other persons is unacceptable. The point is, if similarly placed petitioners/parties invoke the jurisdiction of this Court under Articles 226 and 227 and able to demonstrate that they are also entitled to get protection/reliefs, we just cannot deny the same merely because there are alleged contrary views. We are inclined to observe that we are not going to extend the discussion further and the effect of those judgments and basically of recent High Court judgment (Sanjay, Archana & ors.), in view of above reasons and the binding decisions.
29. The equal needs to be treated equally. To elaborate the issue of discrimination and of treating unequally, it is apt to consider the facts and circumstances of W.P.No. 5031/12 also; the events of which ::: Downloaded on - 27/08/2013 21:05:48 ::: 28 wp5530.12.odt are as under :
"On 1.7.98/24.6.1989 the petitioner was appointed on the post of Assistant Teacher by respondent no. 3, initially on 1.7.1988 and thereafter by its order dated 24.6.1989. The petitioner belongs to the "Halba" caste, which was a scheduled tribe. Sometimes in 2005, a proposal for petitioner's caste verification was forwarded to the committee 2 by the management of the petitioner's school.
On 20.2.2008, on receipt of the report of the Police Vigilance Cell, respondent no. 2 Committee, passed the order dated 20.2.2008 thereby invalidating the caste claim of the petitioner. It is submitted that the petitioner was served with the copy of order on 27.2.2008. On 26.2.2008, even before the service of the order, respondent no. 3 and its institution issued a termination order dated 26.2.2008 by which the petitioner's service as Assistant Teacher was terminated only because of the invalidation of the caste claim. On 25.3.2008, the petitioner challenged the same by way of Appeal u/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Act, before the School Tribunal, Amravati. The petitioner prayed for grant of protection of his service in view of various Government Resolutions including the G.R. dated 15.6.1995, as his appointment was earlier to 15.6.1995. By order dated 20.1.2009 ::: Downloaded on - 27/08/2013 21:05:48 ::: 29 wp5530.12.odt the Appeal was dismissed. The petitioner filed W.P. No. 1561/09 before the Single Bench of this Court. By the judgment and order dated 16.10.2009 the writ petition was allowed, and directed the petitioner to be reinstated with continuity of service and related monetary benefits. The petitioner was granted protection of his service till his retirement and was required to submit an undertaking that in future he or his children shall not claim any benefit of reservation of Scheduled Tribe. The petitioner submitted the undertaking. The respondents no. 2 and 3, filed the Letters Patent Appeal before the Division Bench of this Court bearing LPA No. 519/09. The appellate bench by its judgment dated 27.4.2010 allowed the Letters Patent Appeal and the judgment of the learned Single Judge was quashed and set aside. It is pertinent to note that the petitioner has challenged the order passed by the Caste Scrutiny Committee by way of a separate writ petition bearing W.P. No. 1900/09 which was also dismissed by this Court.
In the year 2010 the petitioner filed two separate Special Leave Petitions before the Hon'ble Supreme Court one challenging the judgment dated 5.8.2009 in W.P. No. 1900/09 which was registered as Special Leave Petition Civil (CC) No. 1258/10. The second Special Leave Petition raised a challenge to the judgment and order in Letters Patent Appeal No. ::: Downloaded on - 27/08/2013 21:05:48 ::: 30 wp5530.12.odt 519/09, which was registered as Special Leave Petition (Civil) CC th No. 12906/10. On 10 August 2010, during the course of hearing of the matter before the Hon'ble Supreme Court the petitioner invited the attention of the Court towards the office memorandum dated 10th August 2010 issued by the Government of India, which was relevant for deciding the controversy. On 01.10.2010, in view of the Office Memorandum, the Hon'ble Supreme Court passed an order dated 1.10.2010 and accepted the request of the petitioner granting him the liberty to move before this Hon'ble Court seeking protection of his service. The Special Leave Petitions were not pressed and they were not decided on merits.
During that period, respondents no. 2 and 3, expressed the desire to compromise the matter with the petitioner and asked the petitioner to wait till the decision of the other similarly situated employee Kavita Solunke, but in vain.
30. It is relevant to note that Kavita (supra) was also an applicant with the petitioner (Raju) along with two others. The Scheduled Tribe Certificate Scrutiny Committee, Amravati Division, Amravati, had passed the common order. The certificates were declared invalid holding that they are not "Scheduled Tribe". Both these persons belong to the caste "Koshti". The termination of both these persons was by an identical order. Kavita had filed a W.P. No. 1810/08 before this Hon'ble Court challenging the termination order which was dismissed by order ::: Downloaded on - 27/08/2013 21:05:48 ::: 31 wp5530.12.odt dated 20.2.2008. Against the judgment, Kavita filed the Special Leave Petition in the year 2009. The civil appeal was heard finally on 9.8.2012 and the same was allowed. The Supreme Court has directed the reinstatement to her with continuity of service.
31. The following order came to be passed on 1.10.2010 by the Supreme Court in the petitioner's (Raju) matter.
"Learned counsel for the petitioner seeks leave to withdraw the petitions stating that the petitioner would like to file an application before the High Court for appropriate orders in the th light of the Office Memorandum dated 10 August, 2010, issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training. Accordingly, the special leave petitions are dismissed as not pressed. It goes without saying that we have not expressed any opinion on the merits of the submission made by the learned counsel. As and when the application is filed, it shall be considered on its own merits."
32. The petitioner, therefore, filed the present W.P. No. 5031/12 in this Court. Kavita already got the relief. The petitioner therefore in view of the above liberty has been praying for protection of service and reinstatement on the same line. The opposition by the learned counsel appearing for the respondents basically on the ground of "delay", "constructive res-judicata" and "estoppel" as the petitioner's ::: Downloaded on - 27/08/2013 21:05:48 ::: 32 wp5530.12.odt entitlement had been denied by the Court, as alleged. We are inclined to observe that all these doctrines, which have the foundation of procedural law, just cannot be the foundation to deny the constitutional based rights revolving around Article 14 of Constitution of India, apart from the clear observations given in Milind (supra). We are inclined to observe that in view of the judgments in Kavita (supra), Deepak (supra), which have re-enforced the purpose and object of granting such protective relief to all the persons who acquired right prior to 28/11/2000, ought not to have been denied. To oppose the crystalized right is nothing but treating equals unequally which, in our view, is impermissible. There is no total bar, or even otherwise, in every such matter that the High Court should not interfere in subsequent writ petition though based upon the reinforcement of the overlooked law, as happened in these cases. It is made clear that we are considering the cases of indistinguishable employees/students who are entitled to get the same benefits/protection/reinstatement on the foundation of the Supreme Court Constitution Bench decision [Milind (supra)].
33. It is relevant to note even the order passed by supreme court in Deepak (supra) dated 22.4.2013 supports the cases in question.
The three judges Bench judgment, presided over by the Hon'ble Chief Justice, again in a matter from the High Court of Bombay, Nagpur Bench (W.P. No. 1072/07), directed the respondents, in that case Union of India & ors., to apply similar Office Memorandum dated 10.8.2010. That was ::: Downloaded on - 27/08/2013 21:05:48 ::: 33 wp5530.12.odt also the case of Halba-Koshti/Koshti caste, who were earlier appointed against the vacancy reserved for Scheduled Tribes on the basis of Scheduled Tribe certificate issued to them by the Competent Authority.
In those matters the appointment became final on 28.11.2000 (Milind).
The grant of such protection to the similarly situated persons/petitioners/parties again has been reinforced and it appears that there was no serious opposition also and or recorded by the Supreme Court while extending the protective umbrella. The submission that matter was pertaining to Union of India, and or for the employees of Union of India, in our view, in no way is sufficient to deny the right to the equally situated persons/parties. We are inclined to appreciate that the State of Maharashtra and even Union of India, pursuant to Milind (supra), extended the benefit to Halba-Koshti/ Koshti and the similarly situated persons by various Circulars. The submission that those Circulars are contrary to the provisions of law and cannot be the foundation to grant protection referring to the Division Bench judgment of this Court in Rajendra and Archana (supra), is unacceptable. The contesting respondents- Union of India, State of Maharashtra and the concerned respondents just cannot overlook the binding judgments/directions issued by supreme court from time to time by reinforcing that the protection so enlarged/granted by the constitution bench, needs to be extended to all similarly placed persons, specially in view of their own Circulars. They are estopped from challenging or ::: Downloaded on - 27/08/2013 21:05:48 ::: 34 wp5530.12.odt opposing the protecting relief. We are inclined to observe that there should not be any further dispute with regard to this issue. All are bound by the "law of precedent", the doctrine of "judicial discipline" and above all the basic principles of treating "equals equally" flowing from Article 14 of the Constitution.
No case for reference to a larger bench
34. In view of the above observations, we are inclined to observe that there is no necessity to deal with the judgments and or the circumstances raised and referred by the parties opposing the protection.
The learned Judges after referring to the individual cases and the circumstances, have passed the order granting protection, especially in view of the supreme court judgment (Solunke). We would like to exercise our discretion and the jurisdiction in favour of granting the reliefs, subject to the conditions mentioned in similar other cases. There is no need to deal with and distinguish each matter in view of clear judgment given by the supreme court, as recorded above. There is no case for referring the matter to the larger bench. It was never referred at the relevant time also.
35. Learned counsel appearing for the State of Maharashtra read various earlier judgments of supreme court including the judgments of this Court where the Court refused to grant protection. He also pointed out that matters are pending even in supreme court against ::: Downloaded on - 27/08/2013 21:05:48 ::: 35 wp5530.12.odt (Archana) and (Rajendra) (supra). He prayed for deferring the matters till the decision of supreme court in those cases. These matters are pending since long and the substantial hearing has been taken on day to day basis and in view of the Supreme Court's binding decisions, we declined to defer these matters.
The requirement of a caste certificate.
36. Argument is also made on behalf of the State that the requirement of a certificates just cannot be overlooked in view of clear provisions of Act No. XXIII of 2001, apart from the earlier proceedings, as referred in Madhuri Patil V. Additional Commissioner, Tribal 1 Development . As noted, the Act came into force on 18.10.2001.
The cases which are governed by Milind (supra) cannot be equated with the cases where cause of action arose on or 18.10.2001. The procedure of caste certificate validation are also not foreign to the scheme and object of the Act. The respective obligations of the parties, especially petitioner/ student/ employee, whosoever wants protection or benefit of particular caste, even otherwise is required to file a caste certificate, at least on the basis of then existing rules. The Employer/Department if satisfied need not insist for any further documents. The Department/Employer if asks and or forwards an application for appropriate validation of the certificate, the 1 (1994) 6 SCC 241 ::: Downloaded on - 27/08/2013 21:05:48 ::: 36 wp5530.12.odt employee/student is under obligation to cooperate and get the certificate in accordance with law. This requirement is not only for getting the benefits based upon the caste certificate. It is also for other various purposes, such as service record and other related records of the Department/Employer. We are inclined to observe that the submission that no certificate is necessary the moment protection is granted is incorrect. In Milind (supra), the issue was not about validity of certificate (Halba-Koshti/Koshti). The issue was only of the benefit of Scheduled Tribe. That does not mean that the requirement of certificate was also dispensed with. We are inclined to observe that the submission that once the protection is granted/awarded, the certificate is unnecessary formalities for any purpose, was not even contemplated and or decided in Milind (supra). The order of protection/reinstatement are on the foundation of the certificate on the date when the employee/student got the benefits and that has been continued by these supreme court orders. The Government Circulars from time to time, on the contrary, though granted/extended the protection to Halba-Koshti, no where dispenses with the requirement of the certificate but insisted for such certificate even to whom the Court has granted protection/reinstatement.
The protection to continue except caste privileges
37. It is relevant to note that the apex court in Dattu (supra) in para 7 and 8, has observed as under :
::: Downloaded on - 27/08/2013 21:05:48 ::: 37wp5530.12.odt "The Court further directed that she would not be entitled to any further benefits under the caste certificates issued to her and that whatever advantage she may have obtained by way of payment of fees at a reduced rate, were to be made up by her by paying the difference.
We are of the view that this being a case of a similar nature, the decision of the said Bench may also be applied to the facts of this case."
The party/person, as observed above, shall not be entitled to any such benefit of reservation in future, but it nowhere decided that no certificate is needed. Based upon the same, this Court has also granted protection in many cases including A.P. Ramtekkar (supra).
Such Employee/Student cannot be treated as belonging to open category even for any other purpose
38. We are inclined to observe that in each and every matter it is necessary for the employee/student to place on record the certificate afresh. The employer/Department based upon the judgment may not even insist for the same. There may be circumstance that the document or a record may not be available for verification and or getting the certificate as required. The individual case needs to be considered on the basis of respective material. The order already passed by this ::: Downloaded on - 27/08/2013 21:05:48 ::: 38 wp5530.12.odt Court and by the Supreme Court granting protection, and as the party satisfies the department with the certificate, need not even require to be reopened and or reconsidered. But if case is made out and material and reasons are placed on record by the department and raise various doubts with regard to such certificate, based upon which the party/employee got the protection, this may include the case of fraud and misrepresentation. We are inclined to observe that this cannot be said to be an empty formality. To give up the claim as belonging to Scheduled Tribe, as already recorded, no where means that the certificate is not necessary. The requirement of employee/student to be "Halba-Koshti" or similar caste, cannot be overlooked, as no one else is entitled to get this benefit. The person/employee who got the benefit/protection and as in view of Milind (supra) cannot claim the benefit as "Scheduled Tribe", that itself should not be a reason to treat them in open category for the purpose of service record and for all other purposes. The supreme court, as recorded above, has no where made such a declaration. This is also for the reason that in Service Jurisprudence and for the departmental record, the requirement of assessing and or for preparing the list of employees/students, the object of caste just cannot be overlooked. It is not the question of a particular employee who got protection. It is a question of assessment, re-
assessment and preparation of list of employees/students in a particular department. To say that all those students/employees who got protection ::: Downloaded on - 27/08/2013 21:05:48 ::: 39 wp5530.12.odt be treated in open category may not be acceptable to the department/employer, as it will definitely create complications in preparing the list/service record of the employees.
No reservation privilege to other family members
39. We are also inclined to observe that a particular employee/student in view of the protection granted may give undertaking that he would not claim any benefit of belonging to "Scheduled Tribe."
That does not mean that her family members have also given up the caste claim considering the normal requirement of any department to have a valid certificate. It also certainly creates complication. A person/employee may give up his own rights but not of others and basically of other family members. We are inclined to observe that grant of extension/protection to a particular individual never intended to take away the caste based rights of all other family family members.
40. In W.P. No. 1511/13, the petitioner is belonging to "Halba".
He was appointed by order dated 24.12.1996. He also prayed for protection of service in view of the decision Kavita (supra) and Dattu (supra). This Court, however, by order dated 30.1.2013 disposed of the writ petition (W.P. No. 6303/12) by recording that the contesting respondents would not terminate the services of the petitioner unless and until Caste Scrutiny Committee invalidates the caste of the petitioner.
It is relevant to note that by order dated 20.12.2012 in the earlier writ ::: Downloaded on - 27/08/2013 21:05:48 ::: 40 wp5530.12.odt petition (W.P. No. 6303/12) the petitioner restricted her claim to the extent of protection of her services in accordance with the judgment in Kavita (supra) and ultimately the matter was decided and disposed on 30.1.2013, as recorded above. The petitioner ultimately got protection of service based upon "Kavita and Dattu" (supra) and other judgments passed by this Court. The petitioner has specifically averred that if protection is granted she is ready to give up the issue of verification of caste. We are inclined to observe that it is not a question of giving up the caste claim by the employee but it is the requirement and in a given case if insisted by the employer/department, it just cannot be overlooked.
The petitioners case also falls within the ambit of the circumstances as provided and or discussed in Solunke, Deepak, Dattu & ors. are entitled to protection, but subject to similar conditions.
The delay no reason to refuse equal protection and relief
41. It is relevant to note that the supreme court in all these matters, without considering, and as there was no issue raised with regard to delay or laches or res-judicata or estoppel, granted relief/protection as well as reinstatement order. Though all the parties-
respondents were there, there was no single finding on this issue agitated and or raised in those judgments. The cause of action still subsists.
42. In W.P. No. 4274/13, the petitioner who belongs to "Halba"
::: Downloaded on - 27/08/2013 21:05:48 ::: 41wp5530.12.odt was selected and appointed on 20.3.1997. She was confirmed in service from 1.7.1999, though confirmation order was dated 5.4.2003. We are inclined to observe here that the employer/department may take its own time to confirm such employee, but the facts of initial appointment and confirmation of service prior to 28.11.2000, that itself was sufficient for the petitioner or similarly situated person to get the benefits/protections, as recorded above. The petitioner has been working since then. As the revision of pay scale of petitioner from July, 2010 was not granted by the respondent/college, she filed the present petition and prayed for setting aside order dated 17.5.2012 for not revising her pay scale. This is the case where the petitioner's caste was invalidated. However, the Court has granted stay to the order of Caste Scrutiny Committee in the year 2012 and directed to concerned respondent to revise her pay scale. By order 26.11.2012 directed protection based upon Dattu and Kavita (supra) and observed as under :
"5. The respondent no.2 is directed not to terminate the services of the petitioner on account of invalidation of her tribe claim.
6. However, it is made clear that neither the petitioner nor her progeny would be hereinafter entitled for the claim as is claimed by the petitioner.
7. The petitioner shall file an undertaking within a period of two weeks to the effect that he or his progeny will not claim any benefit of reservation as claimed by the petitioner."::: Downloaded on - 27/08/2013 21:05:48 ::: 42
wp5530.12.odt
43. In this case, this Court has granted protection basically in view of the fact that she was appointed on 20.3.1997 as Lecturer on the basis of the certificate and she had rendered service of more than 15 years. There is nothing on record to show that this order is reversed.
The petitioner nor her progeny would be entitled to claim any benefit of reservation, and accordingly an undertaking has been filed in the Court, as directed. In this situation also, it is difficult to accept that certificate and validation of caste certificate is not essential. The petitioner and such persons who are parties and if required need to cooperate or participate in the proceedings and get the valid certificate. This will at the most endorse their caste which is the foundation of their protection/entitlement. That will also make the service record clear for all the future purposes and also for the related/connected benefits arising out of the caste.
44. In W.P. No. 4274/12, respondent no.1- Joint Director of Education, refused to grant benefits by observing as under :
"Fixation and revision of pay scale of petitioner is returned since caste claim of petitioner is pending and validity certificate is not filed."
The proposal of petitioner for fixation/revision of pay scale was returned in spite of the orders passed by this Court granting protection even on account of invalidation of her caste claim. Once the Court has granted protection, except the caste benefit, the petitioner and such employees ::: Downloaded on - 27/08/2013 21:05:48 ::: 43 wp5530.12.odt are entitled for all other service benefits in accordance with law. The order passed by the Court just cannot be overlooked by the respondents and in the present case the order of the Court is wrongly interpreted.
The respondents are bound to proceed and deal with the case of the petitioner in accordance with law, with the similarly situated employees/ persons.
The cases of fraud and misrepresentation need different treatment
45. We are not concerned with the cases whether caste certificate of Halba-Koshti is obtained by fraud or misrepresentation. The Court needs to consider the case separately based upon the facts and circumstances. By this process only the Department of respondent/management would be in a position to verify the genuine candidates who have valid certificates. We are also inclined to observe that in many matters where invalidation and or cancellation of caste certificate by itself cannot mean that it was false claim or false certificate.
The facts and circumstances and the situation prevailing prior to 28.11.2000 just be cannot be overlooked while considering these cases.
46. The Maharashtra Act of 2001 cannot be over looked even by the High Court while extending protection even after following Milind (supra). We have dealt with the cases governing pre 28/11/2000 period.
47. It is relevant to note that in all these matters where the Courts have granted protection, that was on the foundation of the original ::: Downloaded on - 27/08/2013 21:05:48 ::: 44 wp5530.12.odt certificate, obtained prior to 28.11.2000. The subsequent invalidation of these certificates in no way takes away their other rights based upon then existing certificates. In future they may not be able to claim the said benefit of reserved category, but the continuity of service and of related benefits based upon their service records by these orders remain intact, and cannot be taken away unless specifically directed in specific matters.
The reinstatement without Scheduled Caste benefits and no back wages
48. The persons/employees who are terminated now claiming reinstatement and all other benefits, in view of the judgments in Solunke, Deepak, Dattu (supra) etc., need to be treated again on different footing not for the entitlement and or benefit, but also for the fact that they were admittedly not in service from the date of illegal termination till the date.
The court needs to pass appropriate orders in such matters of reinstatement, if any, covering the aspects of back wages and the continuity or related benefits.
Now difficult to discriminate similarly situated persons
49. The Hon'ble Supreme Court directed reinstatement of Kavita Solunke. But before the decision in Kavita, the writ petition and the Letters Patent Appeal filed by Raju Gadekar were decided and he ::: Downloaded on - 27/08/2013 21:05:48 ::: 45 wp5530.12.odt was not granted the protection. Raju Gadekar had filed SLP which was disposed of as not pressed with liberty to file an application before the High Court making the claim on the basis of Circular issued by the th Government of India on 10 August 2010. Accordingly, Raju Gadekar filed writ petition. The facts of Raju Gadekar's case and the facts of Kavita Solunke being identical, it would have been patent discrimination between the two candidates if the relief as granted to Kavita is not granted to Raju Gadekar and, therefore, the petitioner in W.P. No. 5031/12 is granted the same relief as granted by the Hon'ble Supreme Court to Kavita (supra).
50. The facts in this case also are almost identical to those of Raju Gadekar and Kavita Solunke. We are conscious tht the prayer made by the petitioner in W.P. No. 5530/12 was refused by this Court by judgment given in W.P. No. 5008/09 and that the application seeking review of the above judgment was also dismissed by this Court. Now, this W.P. No. 5530/12 is filed seeking reinstatement in service relying on the judgment passed by the Hon'ble Supreme Court in the case of Kavita Solunke and Dattu Thakur. Having granted reinstatement to Raju Gadekar (the petition in W.P. No. 5031/12), it is difficult to deny the relief to the petitioner in W.P. No. 5530/12 only on the ground that similar prayer was rejected by this Court in the earlier round of litigation. As discussed, the entitlement of candidates claiming to be "Halba" for continuation/reinstatement in service has been upheld by the Hon'ble ::: Downloaded on - 27/08/2013 21:05:48 ::: 46 wp5530.12.odt Supreme Court right from Milind's case till Kavita Solunke's case.
51. In this situation, we cannot be oblivion of the fact that while exercising jurisdiction under Article 226 of Constitution of India, it is the prime duty of this Court to protect the constitutional rights and to see that everyone has been treated equally The arguments made on behalf of the respondents that the judgment passed in W.P. No. 5008/09 and Review Petition refusing protection of service to the petitioner are based on the principles of res judicata. In our opinion, the law concerning "res judicata" is based on public policy and a procedural law and it cannot deter this Court from protecting constitutional and fundamental rights of the petitioner. In our opinion, when the fundamental rights are to be protected, then the procedural laws cannot deter this Court from denying the relief and this Court cannot turn its eyes on the ground that the continuation of violation of fundamental rights and constitutional rights cannot be looked into in view of the procedural impediments.
Articles 142 and 226 of Constitution of India = complete justice
52. The power of Article 142 vests with the Supreme Court.
The power of Article 226 of Constitution of India also vests with the High Court. These powers are wide enough to cover various aspects including to exercise discretionary powers in the interest of justice. Both the powers are equally important and independent. There is no question of any restrictions. But if we read Articles 141, 142, 144 and the Supreme ::: Downloaded on - 27/08/2013 21:05:48 ::: 47 wp5530.12.odt Court judgments, specially the Constitutional Bench observations/ directions bind all. The Full Bench (Ganesh) not restricted the power of Article 226 and or not dealt with rights flowing from other Articles including Articles 14 and 16. The directions given under Article 142 of the Constitution of India is in the interest of justice considering the long standing and prevailing situation, in our view, any such respondent ought to have complied with it. The cause of action still subsists.
53. The power of Supreme Court and High Court of judicial review is to issue such directions/orders against any person including any authority or any Government to enforce the legal and the fundamental rights and for "any other purpose" to do complete justice.
Therefore, it is the duty of a Court to ensure enforcement of fundamental and legal rights, if curtailed and/or abridged by any one by any act.
Enforcement of Fundamental and Legal Rights
54. The poor or financially weak litigants cannot be denied these reliefs/protection only because of their inability to approach the higher courts including the Supreme Court. The directive principles of State Policy are always important to consider and to interpret fundamental rights and the statutory rights of a citizen. We have to broaden our approach while dealing with the fundamental rights of similarly situated individual/class by diluting the technicality of delay and res judicata, specially in view of the binding directions/orders of the ::: Downloaded on - 27/08/2013 21:05:48 ::: 48 wp5530.12.odt Supreme Court. There is no question of disrespect to the opinions already given by the learned Judges, but definitely the question and obligations to respect the binding supreme court judgments/orders.
55. Resultantly, the following order.
In W.P. No. 5030/12 (Ku. Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha)
(i) The petitioner is entitled for protection of service and reinstatement as Assistant Teacher in respondent no. 3-school with continuity of service except back wages.
(ii) Termination order dated 18.2.2010 is quashed and set aside.
(iii) It is made clear that the petitioner would not be entitled to any further caste benefit on the basis of the certificate.
(iv) It is further declared that if any benefits are granted after 28.11.2000 on the basis that the petitioner belongs to Scheduled Tribe, the respondents are at liberty to withdraw the said benefit and to restore the position as on 28.11.2000.
(v) The petitioner to submit the Caste Certificate to complete the formality of service record, preferably within six months, or as soon as available. Both the parties to co-operate accordingly.
(vi) The respondents shall do the needful within a period of two months from the last date of this order.
(vii) Rule made absolute accordingly. ::: Downloaded on - 27/08/2013 21:05:48 ::: 49 wp5530.12.odt (viii) There shall be no order as to costs.
In W.P. No.5531/12 (Raju Laxman Gadekar v. State & ors.)
(i) The petitioner is entitled for protection of service and reinstatement as Assistant Teacher with continuity of service except back wages.
(ii) Termination order dated 26.2.2008 is quashed and set aside.
(iii) It is made clear that the petitioner would not be entitled to any further caste benefit on the basis of the certificate.
(iv) It is further declared that if any benefits are granted after 28.11.2000 on the basis that the petitioner belongs to Scheduled Tribe, the respondents are at liberty to withdraw the said benefit, and to restore the position as on 28.11.2000.
(v) The petitioner to submit the Caste Certificate to complete the formality with service record, preferably within six months, or as soon as available. Both the parties to co-operate accordingly.
(vi) The respondents shall do the needful within a period of two months from the last date of this order.
(vii) Rule made absolute accordingly.
(viii) There shall be no order as to costs.
In W.P. No. 1511/13 (Ku. Chhaya Hemraj Nimje v. The S.T. Caste ::: Downloaded on - 27/08/2013 21:05:48 ::: 50 wp5530.12.odt Certificate Scrutiny Committee & ors.)
(i) The petitioner is entitled for protection of service.
(ii) It is made clear that the petitioner would not be entitled to any further caste benefit on the basis of the certificate except the continuity of service.
(iii) It is further declared that if any benefits are granted after 28.11.2000 on the basis that the petitioner belongs to Scheduled Tribe, the respondents are at liberty to withdraw the said benefit, restore the position as on 28.11.2000.
(iv) The petitioner to submit the Caste Certificate to complete the formality with service record, preferably within six months, or as soon as possible. Both the parties to co-operate accordingly.
(v) The respondents shall do the needful within a period of two months from the last date of this order.
(vi) Rule made absolute accordingly.
(vii) There shall be no order as to costs.
In W.P. No.4274/12 (Mrs. Arundhati Suresh Ninawe v. Jt. Director of Higher Education & anr.)
(i) The respondents to consider the revision/fixation of pay scale of petitioner as prayed in accordance with law within two months.
(ii) It is made clear that the petitioner would not be entitled to ::: Downloaded on - 27/08/2013 21:05:48 ::: 51 wp5530.12.odt any further caste benefit on the basis of the certificate except continuity of service.
(iii) It is further declared that if any benefits are granted after 28.11.2000 on the basis that the petitioner belongs to Scheduled Tribe, the respondents are at liberty to withdraw the benefit, restore the position as on 28.11.2000.
(iv) The petitioner to submit the Caste Certificate to complete the formality with service record, preferably within six months, or as soon as available. Both the parties to co-operate accordingly.
(v) The respondents shall do the needful within a period of two months from the last date of this order.
(vi) Rule made absolute accordingly.
(vii) There shall be no order as to costs.
JUDGE JUDGE
/TA/
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