Bombay High Court
Anil Vasantrao Shirpurkar vs State Of Maharashtra And Ors. on 12 July, 2002
Equivalent citations: 2003(2)BOMCR205, [2003(96)FLR951], (2003)ILLJ275BOM
Author: C.K. Thakker
Bench: C.K. Thakker, Ranjana Desai
JUDGMENT C.K. Thakker, C.J.
1. Rule returnable forthwith. Mr. Sonawane, learned A.G.P. for respondents 1 and 2 and Mr. Rao learned counsel for respondent 3 appear and waive service of notice of rule. By consent of the parties, the matter is taken up for final hearing.
2. The petitioner has approached this Court as an order was passed against him terminating the services. The petitioner was granted caste certificate as belonged to Dhoba (ST) on 17th December, 1991. On the basis of said certificate, the petitioner obtained job with Kalyan Dombivali Municipal Corporation respondent 3 herein as a Pharmacist on 9th of August, 1994. The services of the petitioner were regularized on 8th of August, 1996, as he had successfully completed his probation period of two years. Thereafter also, nothing was done by the respondents. It was stated that only on 1st July, 2001 i.e. after the petitioner completed about seven years of service, it was alleged that the petitioner did not belong to Scheduled Tribe and proceedings were initiated.
3. As soon as the petitioner came to know about initiation of proceedings, he instituted a petition but no interim order was passed. Meanwhile when the matter was sub judice, the respondent No. 3 passed an order on 9th of July, 2002 terminating the services of the petitioner on the ground that he did not belong to Scheduled Tribe. In an affidavit in reply, the said order has been brought on record.
4. We have heard the learned counsel for the parties.
5. The learned counsel for the petitioner contended that the proceedings were not initiated within "reasonable time". An order was passed on July 9, 2002 when the matter was sub judice and thus there is colourable exercise of power on the part of the respondents.
6. It was also contended that the committee constituted by the State could not be said to be an "expert committee" as directed by the Hon'ble Supreme Court in Kumari Madhuri Patil and Anr. v. Addl. Commr. Tribal Development, Thane and Ors., .
7. On merits, it was submitted that the petitioner belongs to Dhoba community which is a Scheduled Tribe. The learned counsel stated that great prejudice will be caused to the petitioner, if at this stage, his services would be terminated, as he is age barred for Government and Semi Government services. He, therefore, submitted that petition deserves to be allowed by quashing and setting aside the impugned order.
8. The learned counsel for the respondents 1 and 2 supported the order. It was submitted that the petitioner did not belong to Dhoba community and when the appointment was made on that basis, he was not eligible to get appointment. An action, therefore, has been taken. It was stated that the order which is otherwise legal and valid cannot be objected to by the petitioner on the ground that there was delay by the respondents.
9. Regarding constitution of committee, it was submitted that the constitution was legal and lawful. Therefore, it was submitted that the petition deserves to be dismissed.
10. In the facts and circumstances of the case, it is not necessary to go into a larger question. It is clear from the record and not controverted by the respondents that the petitioner joined the services of respondent No. 3 on August 9, 1994. He completed the probation period of two years and had been made regular with effect from 8th August, 1996. It is only in July, 2001 i.e. after about seven years of service and after about five years of regularization that the proceedings were initiated. The question, therefore, is whether such a period can be said to be "reasonable period" to initiate proceedings against the petitioner.
11. In the leading decision in State of Gujarat v. Patel Raghav Natha and Ors., , the Supreme Court held that the power of revision must be exercised within reasonable period. So far as reasonable period is concerned, it depends upon the scheme of the Act, nature of action likely to be taken, consequences likely to ensue and such other relevant facts and circumstances. Even with regard to caste certificate, this Court in Chandrabhan Yamaji Nandanwar v. Director, of Health Services, Mah. State, Bombay and Ors., 1999 (1) Mh.LJ. 536 held that in case of caste scrutiny certificate, the power must be exercised within reasonable time and according to the Division Bench of this Court, such time should be about two years as that is the period of probation. If a person is to remain on probation period of two years, unless he complete the period of probation, proceedings could be initiated. Since the proceedings were initiated after the period of two years, it was held not to be reasonable period.
12. In the facts and circumstances of the case, in our opinion, the proceedings cannot be said to have been initiated within reasonable time. It is undisputed that the petitioner was appointed in 1994 and after the period of probation, he was regularized in 1996. Neither the proceedings were initiated in 1994 nor in 1996 but after five years of completion of probation period i.e. in 2001.
13. In our opinion, therefore, it cannot be said that the proceedings were initiated within reasonable period. Only on that ground, the petition is allowed. The order dated 9th of July, 2002 is hereby quashed and set aside.
14. Since the petition is allowed on the ground that the power of initiation of proceedings was not exercised within 'reasonable period', the action taken and order passed deserve to be quashed. We may, however, make it clear that, we may not be understood to have upheld the validity of Scheduled Tribe of the petitioner.
15. The learned counsel for the respondent No. 4 states that respondent No. 3 intends to challenge the Order passed by this Court. He, therefore prays that eight weeks time may be granted. In the facts and circumstances, eight weeks time is granted from today.
16. Authorities to act on Ordinary copy of this Order duly authenticated by the Sheristedar of this Court.