Central Administrative Tribunal - Mumbai
Sarita Sanjay Waghmare vs M/O Communications on 11 September, 2024
1 OA No.340/2017 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.340/2017 Dated this\¢loca nn he th September, 2024 CORAM : MS HARVINDER KAUR OBEROI, MEMBER (J) MR. SHRI KRISHNA, MEMBER (A) Sarita Sanjay Waghmare Aged . 39 years, residing at Mayur Apartment, 1° Floor, Shivaji Chowk, Patil Ali, Opp. Hanuman Temple, Karjat, Dist.Raigad ---410 306 Office Address: Vashi MDG, Navi Mumbai. - Applicant (By Advocate Ms. Komal Gaikwad i/b Shri R.K. Mendadkar ) Versus 1. Union of India Through its Joint Secretary, Ministry of Communications and Information Technology (India} Having its office at Sanchar Bhavan, - New Delhi. oe : (copy to be served upon counsel At Income Tax Bidg., Churchgate, Mumbai. 2. Chief Post Master General Maharashtra Circle, CST, Mumbai -- 400 001. 3. Superintendent of Post Offices Navi Mumbai Division, Panvel, Department of Posts, Panvel, Dist. Raigad -- 410 206. 4. Director of Postal Services (MR), having its office at 'Page 1 of 48 2 OA No,340/2017° ' PMG, Mumbai Region, Mumbai ~ 400 001. - = Respondents (By Advocate Shri R.R. Shetty) ORDER
Per: Mr. Shri Krishna, Member (Administrative) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"8(a) That this Hon'ble Tribunal be pleased to declare that the order of dismissal from service dated 05.05.2011 passed by the respondent No.3, order dated 14.02.2012 passed by the respondent No.4 in appeal and order dated 17.01.2017 passed by the respondent no.2 respectively are bad in law, illegal and be set aside with all consequences.
(b) That the respondent No.3 be ordered to withdraw and/or cancel the impugned order of dismissal from service dated 05.05.2011 with further direction to respondent No.3 herein to reinstate the applicant on the post of Postwomen with all consequences including back wages.
(c)Cost of the application be provided for.
(d) Such other and further equitable order be passed as this Hon'ble Tribunal may deem fit and proper."'
2. Brief facts of the case as stated by the applicant are that the applicant underwent inter-
caste marriage with one Shri Sanjay Shrirang © Waghmare on 08.02.1988. He belongs to Mahar caste which is recognised as Scheduled Caste under the Presidential order issued under Article 341 of the Constitution of India. Since the applicant Page 2 of 48 3 _ OA No.340/2017 underwent inter caste marriage, she was granted Caste certificate on 01.01.1992 certifying that she belongs to Scheduled Caste being the wife of a Scheduled Caste husband. The said 'caste certificate has not been cancelled so far by any authority after following due procedure.
2.1 The applicant after undergoing rigmarole of selection at the hands of Superintendent of Post Offices, Navi Mumbai, she was appointed on the post of Postwoman on 08.11.1992 under reserved category of Scheduled Caste. Thereafter, she was directed to produce caste certificate issued by the' competent authority and accordingly the applicant relying upon the documents of her husband belonging to Mahar caste, she applied for issuance of caste certificate which was granted on 01.01.1992. Based on the above caste ' certificate, the respondent No.3 prepared a gradation list of employees as on 01.07.1992 in the year 1993 and in the said gradation list also her social status has been mentioned as Scheduled Caste. Based on the caste certificate, the Page 3 of 48 =:
4 OA No.340/2017relevant entries were also made in the service book.
2.2 The applicant while working as Postwoman at Vashi applied for LGO Examination under Scheduled Caste category on the basis of caste certificate issued to her on account of her marriage with a scheduled caste person. She was declared successful against sC quota and allotted to Pune Mofussil Division for further posting.
However, ' while completing pre-appointment Formalities, she was asked to produce caste validity certificate as belonging to scheduled caste. Accordingly, she went before the concerned 'caste scrutiny committee which informed her that now facilities arising out of Marriages by non- scheduled castes to scheduled castes person. has been withdrawn and, therefore, applicant has to obtain certificate of caste to which she belongs. Accordingly, she applied for caste certificate as belonging to Mannewar, Scheduled Tribe as she belongs to that category. The Said certificate was granted to her. The said certificate was also Page 4 of 48: 5 | OA No.340/2017 referred to for verification. However, the concerned caste sorutiny committee invalidated the Tribe certificate of the applicant for want of sufficient material by an order dated 08.02.2008. The applicant filed Writ Petition No.4215/2008 in the Hon'ble High Court of Bombay. During the course of argument, it was pointed out that the applicant has underwent inter caste marriage and on the basis of her caste certificate granted to her on the basis of social status of her husband, she was appointed on the post of scheduled caste status. It was also pointed out that now because of the judgment of the Hon' ble Apex Court in the case of Valsamma Paul Vs. Cochin University reported in 1996 (3) SCC 545, the applicant cannot claim further benefit as a scheduled caste.
2.3 On merit, the applicant contends that the order passed by the caste scrutiny committee is not sustainable. The Hon'ble High Court of Bombay was pleased to permit the applicant to withdraw the said Writ Petitioh with liberty to make Page 5 of 48 6 OA No.340/2017 representation to her employer. Accordingly, on 28.01.2009, she made representation to respondent No.2. She pointed out that she had been accepted by the respondent No.l as Scheduled Caste Candidate and, therefore, she is entitled for continuation of service. However, without considering the representation in its proper perspective, . the respondents issued memorandum dated 04.12.2009 and issued chargesheet to her. The applicant contested the chargesheet by denying the charges levelled against her. However, the respondent No.3 appointed the Inquiry Officer to go into the charges. Finally, the inquiry proceeded with the inquiry, the Inquiry Officer vide his report dated 19.01.2011 has passed final order recording a finding that charges levelled against the applicant are proved beyond doubt.
2.4 The applicant submits that the respondent No.3 without issuing any show cause notice to the applicant straight away passed impugned order dated 05.05.2011 thereby dismissing the services of the applicant, though the applicant was Page 6 of 48 7 , _ OANO.340/2017 appointed on the basis of caste certificate as belonging to scheduled caste and though that certificate has not been cancelled so far by any competent authority of jurisdiction. 2.5 | The applicant filed OA No.499/2011 which was disposed of by the Tribunal on 17.08.2011 with liberty to prefer a review application to the appropriate authority within a period of three weeks. The revisionary authority was directed to dispose of the same by a. reasoned order within three months from filing such application.
2.6 Pursuant to the direction of the Tribunal, the applicant. filed Review Petition before the respondent No.4 which was rejected vide order dated 14.02.2012. The applicant again approached the Tribunal by filing OA no.376/2012 which came to be withdrawn vide order dated 18.01.2016 with liberty to submit revision petition before the respondent No.3 (Revisionary Authority) alongwith an application for condonation of delay within two weeks from the date of receipt of that order.
Page 7 of 48 8 OA No.340/2017It was made clear that in the event such revision. petition is filed, the respondent No.2. shall consider the same after condoning the delay within four weeks thereafter and the applicant was further directed to take all the points which have been urged in the OA.
2.7 Pursuant to the above order of the Tribunal, -- the applicant filed Revision Application on 12.02.2016 before the respondent No.4. However, the applicant was instructed to file revision petition before the Revisionary Authority. Accordingly, she filed Revision Petition before the respondent No.2 pointing out merit of her case and further apart from the other judgments, she also placed on record the judgment of the Bombay High Court in the case of Arun Sonone Vs. State of Maharashtra & Ors.
reported in 2015{1) Mh.L.J. 457 and prayed for protection of her services in the light of the aforesaid judgment.
2.8 The Revisionary Authority without considering the above judgement of the Hon'ble Page 8 of 48 OA No.340/2017 High Court passed an order dated 17.01.2017 confirming the order dated 14.02.2012 passed by respondent No.4 i.e. Appellate Authority.
2.9 The applicant has placed reliance on the decision of the Hon'ble High Court Of Judicature At Bombay in Writ Petition No. 8212/2004 in the case of Smt.Fatima Froes Sadavarte alias Fatima Sukurina Froes Vs. State of Maharashtra é Ors.
decided on 23.11.2004 wherein in the similar case the impugned order was quashed and respondents were directed not to insist for praduction of caste validity certificate, It was held that applicant will not be entitled to claim any benefit as a Schedule Tribe candidate in future. The service record of the petition were directed to be corrected by incorporating suitable entry to the effect that petitioner does not belong to any reserved category.
2.9.1 He has further placed reliance on the decision of Hon'ble High Court Of Judicature At Bombay in Writ Petition No. 1167/1994 in the case Page 9 of 48 10 OA No.340/2017 of Devendra Venunath Jangam V.s Deputy Zonal Manager and Disciplinary Authority & Ors. decided on 10.04.1996.
2.9.2 He further placed reliance on the decision of Full Bench of Hon'ble High Court Of Judicature At Bombay, Nagpur Bench 'decided on 22.12.2014 in the case of Arun s/o Vishwanath Sonawane Vs. State Of Maharashtra & Ors. [2015 (1) Mh.L.J.] wherein similar circumstances the services of the petitioner were protected by the Full Bench.
2.9.3 He has further placed reliance on decision of the Hon' ble High Court Of Judicature At Bombay in Writ Petition No. 11441/2015 decided on 04.05.2017 in the case of Mrs.Neelima Narayan Waidande @Kum Shaila Kisanrao Gaikwad.
2.10 Aggrieved by the above impugned order dated 17.01.2017, the applicant has approached this Tribunal by filing this OA.
3. On notice the respondent have filed their reply.
3.1 It has been submitted that the Applicant Page 10 of 48 i OA No.340/2017 has claimed appointment in the office of the Respondent as a Postwoman based on her allegediy being an SC candidate. This she now claims was based on her marriage to a Mahar SC. Upon being called upon to produce a caste certificate, she produced a caste certificate claiming that she is an ST candidate by virtue of her birth. The said certificate was sent to the Caste Scrutiny Committee for validation upon which the Caste Scrutiny Committee has invalidated the same. The Applicant sought to test the said invalidation order by way of writ petition in the High Court of Judicature at. Bombay whereas" during the hearing of the writ petition, the Applicant sought 'to withdraw the writ. petition challenging the order of the Caste Scrutiny Committee and make a representation before the Competent Authority. It is respectfully submitted that in the light of the factual position of invalidation remaining valid and unchallenged, the logical consequence of the department proceedings having culminated initially in the order of dismissal Page 11 of 48 ~12 OA No.340/2017 and thereafter on appeal to that of removal which in turn the latter having been upheld by the Revisionary Authority, there is absolutely "no scope for the Applicant to challenge the same.
4. It has been submitted that as per office record Smt. Sarita S Waghmare, Ex Postwoman Vashi PO has submitted Scheduled Caste (SC) Certificate, bearing No. NO/ADM/WS.IV59/1/192 dated 1.1.1992 issued by Executive Magistrate, Karjat at the time of her appointment as BPM, Wawarle vide SPOs, Navi Mumbai Divn. Panvel Memo No. H-74/Wawarle dt 1.10.1992., 4.1 Subsequently, the said applicant was declared successful and promoted to Postman Cadre. in the Postman Exam heid on 7.6.1998 for Deptt. Quota and allotted to ASPOs Vashi Sub Division and appointed as Postwoman w.e.f. 15.11.1998, being SC candidate vide letter No. ASPOs-B2/A/P! man/Apptt.98 dated 16.12.1998, 4.2 The Respondents further submit that the applicant has appeared for examination © for promotion to clerical cadre (LGO Exam) held on Page 12 of 48 13 OA No.340/2017 24.4.2005 and was subsequently declared successful under SC Community under relaxed standard (ST/SC_ Review Result) vide C.0. No. ADR/2-16/LGO/Review/2005 = dt. 31.11.2005. The applicant was then allotted to Pune Mel. Division vide C.O. No. ADR/2-16/LGO/Review/2005 dt. 28.12.2005 at sl. No. 12 as 'the available vacancies for SC candidates in Navi. Mumbai Division were already occupied by the candidates qualified in regular result and Pune Moffusil Division was the second choice place desired by Smt.Sarita Sanjay Waghmare vide her request application dt. 2.12.2005. At the time of joining as Postal Assistant at Pune Moffusil Division, the Superintendent, - Pune Moffusil Division vide letter No. B-2/Trq/Dept /2006 dated 13.07.2006 intimated to this office to direct Smt. Sarita Sanjay Waghmare to produce Caste Validity Certificate. The respondent vide office letter No. B2/Rectt/Promotion PA/2005/NMD/06 dated 30.10.2006 directed Smt. Sarita Sanjay. Waghmare to submit Caste Validity Certificate. It was Page 13 of 48 14 ; OA No.340/2017 intimated by Supdt, Pune Moffusil Division vide letter No. B-2/Trg/Dept/2006 dated 13.10.2006 that Smt. Sarita sanjay Waghmare has produced ST Certificate instead of SC certificate to the office of Supdt. of Pune Moffusil Division. As smt. Sarita Sanjay Waghmare, Postwoman, Vashi PO, appeared for Departmental examination of clerical cadre with caste "SC" in the application form. 4.3 The cause of action first arose when the applicant produced ST caste certificate suddenly though earlier she passed every departmental examination in sc category quota. The applicant 'furnished false information about her caste as Sc and failed co Submit Caste Validity Certificate from Caste Scrutiny Committee, in spite of repeated reminders. Therefore, it is alleged that, while working as Postwoman, Vashi PO, Smt. Sarita Sanjay Waghmare, has mentioned falsely about her caste status in the application for appearing Departmental examination for PA cadre for recruitment year 2005 held on 24.04.2005, and thereby violated Rule 4 of Appendix 37 Part 1- Page 14 cf 48 15 OA No.340/2017 General, Postal Manual Volume IV, Part II and Rule No. 3 (1) (i) & Rule 3 (1) (iii) of CCS © (Conduct) | Rules, 1964, On 08.02.2007 and 26.02.2007 Smt. Sarita Sanjay Waghmare submitted her request application along with copy of ST caste certificate issued by Sub Divisional Office, Panvel Division of Raigad District to change her caste from SC to ST. In the meanwhile, she was called upon to get her ST Caste Certificate verified from the competent authority ie. Caste Validity Scrutiny Committee as peculiar situation come forth due to sudden change in her caste. Her . appointment to the promotional post of Postal Assistant was: held up for the want of caste validity certificate from competent authority of State Govt.
4.4 The Scheduled Tribe Certificate Scrutiny Committee, Konkan Bhavan, Thane vide their order No. DD/TCSC/SER/Raigad/ 88/2007 dt. 8.2.2008 declared her caste certificate INVALID and also the caste certificate issued to her by Sub Divisional Officer, Panvel Division, Dist. Raigad Page 15 of 48... - 16 OA No.340/2017 bearing No. 753/2006 dt. 26.9.2006 was cancelled and confiscated.
4.5 Consequent upon the decision of the Scheduled Tribe Certificate Scrutiny Committee, Konkan Bhavan, Thane the respondents have made several. requests on 26.02.2008, 11.03.2008, 15.09.2008, 8.10.2008, 20.11.2008, 01.01.2009, 04.08.2009, 07.09.2009 to Smt. Sarita Sanjay Waghmare to clarify her stand on the issue. But Smt. Sarita Sanjay Waghmare failed to comply the same, which is treated as non co-operation in verification and refusal to submit the original caste certificate of SC. | 4.6 The charged applicant was issued Rule 14 Charge Sheet vide memo No. NMD/B2/Rule~-14/SSW/09 dt. 4.12.2009 & called upon to submit a written statement of her defense and also to state whether she desires to be heard in person within 10 days from the receipt of the aforesaid memo dated 19.11.09/04.12.09. The above said memo was delivered to Smt. Sarita Sanjay Waghmare, Postwoman, Vashi PO on 05.12.2009. Smt. Sarita Page 16 ot 48 a 17 ~ OA No.340/2017 Sanjay Waghmare submitted her _ representation dated 10.1.2010 through SPM, Vashi PO received on 13.1.2010 as it was due to be received on or before 15.12.2009. In her written representation dt.10.1.2010 the charged applicant stated that she wants to be heard either in person or through her defense representative and not accepted the Articles of Charges No. I and TI, Thereafter, as per C.0O.No. STA/38-5 (42) /2010 dated 5.02.2010, Smt. P V Kamat, ASP (CBO),0/o Supdt. Of PSD, Mumbai was appointed as Inquiry Officer and Shri A K Chinchole, ASPOs, Panvel Sub Division, Panvel~-410 206 was appointed as Presenting Officer vide 'this office memo No. NMD/B2/R- 14/SSW/10 dated 17.02.2010. The intimation of the same was posted to Smt. Sarita Sanjay Waghmare and received by the applicant on 18.2.2011.
4.7 The inquiry report "NO. ASP (BAG) /Ing/Rule 14/SSW/2010 dated 19.01.2011 of Smt. P. V. Kamat, I.O. was received by the respondent on 20.1.2011 where the findings of the I.0. was recorded as, "the charge leveled against Smt. s.Ss. Waghmare, Page 17 of 48 18 OA No.340/2017 Postwoman, Vashi Post Office vide Supdt. Of Post Offices Navi Mumbai Division memo NO. NMD/B2/S- 14/SSW/10 dated 17.02.2010 stands "PROVED" beyond any doubt." The copy of the Inquiry Report was sent to Smt. Sarita S Waghmare on 7.2.2011, vide office letter No- NMD/B2/Rule-14/SSW/09 dtd 7.2.11 giving a chance to submit her say within 10 days from the date of receipt of letter. The said letter was received by Smt. Sarita § Waghmare on: 9.2.11 and her representation dated 17.2.2011 was received by the respondent on 21.02.2011.
4.8 It has béen submitted that in spite of being given enough opportunities to submit the Caste Validity Certificate, Smt. Sarita Sanjay Waghmare, failed to submit & establish that she belongs to SC or ST and raised doubts about her integrity and acted in a manner of unbecoming of government servant in terms of Rule 4 of Appendix 37 Part I- General, Postai Manuai Volume IV, Part II and Rule No. 3 (1) (31) & Rule 3 (1) (i411) of 'ccs (Conduct) Rules,. 1964 and dismissed from Page 18 of 48 19 OA No.340/2017 Government Service w.e.f. 6.5.2011 F/N. Besides making an appeal against the order of punishment, the applicant directly approached to Hon. CAT, Mumbai Bench and file OA NO. 499/2011 which was disposed off with direction that the applicant is at liberty to prefer a review application to- the appropriate authority within a period of three weeks and in case such a application is made the reviewing authority is hereby directed to dispose of- the same by a reasoned order as expeditiously
-as possible in accordance with law and in any event within three months from the date of making an application, after hearing the applicant.
4.9 As per order of Hon'ble CAT, Mumbai Benth, Mumbai dtd 17.08.2011, the reviewing authority considered the representation of the applicant dtd 5.9.2011 and modified the punishment of "Dismissal from govt. service to that of "removal" from govt. service vide R.O.Mumbai Memo No- MR/STA/44-1/37(5)/22/2011 dtd 14.02.2012. Against the above orders dtd 05.09.2011 and 14.02.2012, petitioner Smt.S.S.Waghmare filed Page 19 of 48 20 OA No.340/2017 Substantive OA no.376/2012 in the Hon'ble Central Administrative Tribunal, Mumbai 'Bench which came to be withdrawn with liberty to submit Revision Petition © before the appropriate Revisionary Authority, alongwith an application for condonation of delay within two weeks from the date of receipt of CAT order dated 18.1.2016.
4.10 The applicant filed a revision application before revisionary | authority i.e. Chief Postmaster General, Maharashtra Circle and vide memo no.STA/44-2 (04) /42)16/2016 dated 10.01.2017 the decision of the appellate authority is upheld by the competent authority ie. Chief Postmaster General, Maharashtra Circie, 4,11 It has been submitted that applicant produced certificate of Scheduled Caste of. her husband' s caste, which is highly irregular. The caste never changes after the marriage. The respondents also submitted that there is no question raised to reinstate the applicant on the post of Postwoman with all consequences including back wages.
Page 20 of 48 21 OA No.340/20173. It has been submitted that the OA is Clearly barred by limitation as the Applicant has not approached this Hon'ble Tribunal within one year from order passed by the Appellate Authority. Also for reasons already set out, the OA is also Clearly devoid of merits and deserves to be dismissed with costs. The Respondents pray accordingly.
6. The other judgments cited on behalf of the respondents in the case of Jarnail Singh & Ors Vs. Lachhmi Narain Gupta & Ors reported in 2022 scc Online sc 96, _P.V. George & Ors vs. State of Kerala §& Ors 'reported in (2007) 3 sCC 557 and M.A.Murthy Vs. State of Karnataka & Ors reported in (2003) 7 SCC 517 are the authorities for the proposition what the Apex Court decided. Any judgment of the Apex court operate prospectively unless otherwise stated in the judgment. The said judgment operate prospectively which clearly.
supports the submissions advanced by the applicant.
7. Learned counsel for the applicant has Page 21 of 48 22 | OA No.340/2017 relied upon the judgement of the Hon'ble High Court of Bombay in the cases of Mrs .Neelima Narayan Waidande @Kum Shaila Kisanrao Gaikwad, WP No. 11441 of 2015 decided on 04% May, 2017 and Leela Dineshsingh Chauhan Vs. State of Maharashtra and Others, WP No.10702/2021 decided on October 22,2021.
8. During the arguments, the counsel for the applicant argued that when she entered in the service, .her entry in the service was in accordance with the law. He further submits that law got changed by the judgment of the Hon'ble Supreme Court°in the case of Valsamma Paul (Mrs) Vs. Cochin University and Others. (1996)3 SCC 245 which was prospective in nature. Therefore, he argues that the applicant was entitled. for continuance in the service atleast in the same position to which she entered in 1992, In pursuance of the Supreme Court's decision, GR dated 07.05.1999 was issued.
Page 22 of 48 23 OA No.340/2_9. The counsel for the applicant has reiterated reliance on the decisions mentioned in the pleadings. In addition she | has placed reliance on the decision of Leela Dineshsingh Chauhan Vs. State of Maharashtra & Ors. reported in 2021 SCC online Bom 3576: 2021(6) BCR 496. It has been submitted that the judgement relied upon by the respondents or not applicable to the facts of the case. It has been submitted that judgement in the case of Chairman and Managing Director FCI and Ors versus Jagdish Balaram Bahira_ and Ors, AIR_2017 SCC_3271 has no application to the case of the applicant as she was appointed to the Services of the respondent no. 2 on the basis of caste of her husband who is a Mahar and he is a scheduled caste. The respondents did not dispute that the husband of the applicant belongs to Mahar, Schedule Caste.
9.1 It has been submitted that the G.R. dated 17.5.1999 only gives effect to the judgement of the Apex Court in the case of Valsamma Paul (supra) but the said G.R. also' does not take away vested rights of employees who joined services on 24 OA No.340/2017 the basis of inter-caste marriage between spouse, The said G.R. nowhere intends to create any violence to the Statutory provisions. Thus, the authorities cited on behalf of the respondents are de-hors the issue raised in the present OA. Even otherwise, judgement in the case of FCI cited supra has been duly considered by the Bombay High Court in the case of Leela Dineshsingh Chauhan Vs. State of Maharashtra and ors. Cited supra, which is evident from Para no. 98 of the said judgement, a copy of which has been placed on record on 7.3.2024,
10. The counsel for the applicant relied on the judgement mentioned in the pieadings and his rejoinder. Learned counsel for the respondents Mr. | R.R.Shetty on the other hand placed reliance on the following judgements:-
'(i) M.A.Murthy Vs. State of Karnataka §& Ors. (2003) 7 Supreme Court Cases 517,
(ii) P.V.George and ors. Vs. State of Kerala & Ors. (2007) 3 Supreme Court Cases 557,
(iii) Madhu Kishore Keny Vs. Ali Yavar Jung National Institute & Ors. 2017 scc online Bom 9787,
(iv) Chief Regional Officer, Oriental insurance Company Limited Vs. Pradip and Page 24 6f 48°"25 OA No.340/2017
another (2020) 11 supreme Court Cases 144, _ (v) Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. 2022 SCC online SC 96.
Zi. We have heard both the learned counsels for both the sides at length and perused the pleadings and documents filed on record. We have also gone through the judgements relied by both the parties. |
12. We find that the respondents have not disputed the fact that the applicant has married Mr. Sanjay Shrirang Waghmare on 08 February, 1988 who belongs to Mahar caste which is a scheduled caste. under the Presidential Order issued under the Article 341 of the Constitution of India . It is also not in dispute that she was initially appointed as Postwoman on 08.11.1992 at Vashi on the basis of SC certificate dated 01% January, 1992 issued by Executive Magistrate, Karjat on the basis of her marriage to Mr. Sanjay Shrirang Waghmare. Thus, the question is whether her appointment in 1992 can be cancelled by the respondents on the basis of the subsequent Government Resolution dated O7t May, 1999 which Page 25 of 48 26 OA No.340/2017 was issued pursuant to the judgement of Hon'ble Supreme Court in the case of Valsamma Paul (supra) .
In the reply filed by the respondents, nowhere it is denied that she has married Mr. Sanjay Shrirang Waghmare on 08.02.1988 before her appointment as Postwoman, Vashi on 08.11.1992. She has also not claimed the SC status on the basis of her birth in that caste. The claim was made on the basis of marriage which was in accordance with law as prevalent on the date of her appointment i.e, on 08.11.1992. It is subsequent _ to her appointment that when the respondents have after asked her to again produce caste certificate of SC category. When she approached the officer concerned for issue of caste certificate, she was advised that she being scheduled Tribe. by birth, Scheduled Caste Certificate cannot be issued to her and she should apply for Scheduled Tribe Category. Therefore, she applied for ST category and certificate of ST category was issued to her by the officer concerned. However, the Caste Page 26 of 48 27 OA No.340/2017 scrutiny Committee has invalidated the ST status on the grounds that her family does. not carry the tradition of that particular tribe. We find that Full Bench of Hon'ble High Court of Judicature at Bombay has considered the similar issue of invalidation of caste certificate and grant of relief of protection of service in the case of Arun s/o Vishwanath Sonone (supra). In the said judgement, after considering the factual matrix of the case, Hon'ble Full Bench has held as under: -
"61. In view of the aforestated law laid down by the Apex Court after considering the effect of the Government Resolutions dated 15-67-1995 and 30-6-2004, which are applicable to ail the persons belonging to the Special Backward Class category, we are of the view that the Protection granted in Milind's case to the persons belonging to caste "Koshti" or "Halba Koshti" in terms of the decision of the Apex Court in Milind's case, is also available to aii the persons belonging to the Special Backward Class category included in the Government Resolution dated 15-6-1995. There cannot be any different treatment for the Persons, who are similarly Situated, merely for the reason that in most of the cases, the Persons belonging to caste "Koshti" or "Haiba Koshti" have approached the Apex Court for grant of protection. The interpretation of section 10 of the said Act placed by the Apex Court in Shalini's case, applies with equal force to the guideline Nos. 14 and 15 in Madhuri Parii's case. In view of this, we do not find any justification or Propriety in the action of the Government of India in refusing to grant protection to the persons belonging Page 27 of 48 28 OA No.340/2017 to the caste other than "Koshti" or "Halba Koshti". We answer question No. (a) in para 55 above, holding that the Persons belonging to Special Backward Category are entitled to the same protection as has been granted to the persons belonging to caste "Koshti" and "Halba Koshti",
62. We, therefore, find that the decision of the Division Bench of this Court in the case of Pradip Koli to the extent it holds in para 26 that "the case of A. P, Ramtekkar does not notice that the decision in the case of Kavita Solunke is confined to those who were claiming to be Halibas and therefore, it is not a binding principle" does not lay down a correct fegal position and hence it is partly overruled, making it further clear that we concur with rest of the judgment as daying down a correct position of law in respect of "Koshti" and "Halba Koshti". Similarly, in Rakesh Dafade's case, the Division Bench has granted protection to the Persons belonging to "Koli" caste falling in the Special Backward Class category. We do not find that the grant of such protection is contrary to any of the decisions of the Apex Court.
63. In the:decision of the Division Bench of this Court in A.P, Ramtekkar's case, it is held that in view of the law laid down by the Hon'ble Apex Court in State of Maharashtra vs. Milind (supra), the Petitioners who are Halba Koshtis can now by no stretch of imagination be held to be belonging to Scheduled Tribe. We, Eherefore, fail to understand the approach of . the employer -in compelling the petitioners to undergo the scrutiny as to whether they belong fo Scheduled Tribes or not, when, as a matter of fact, they have given up their claim as belonging to Scheduled Tribes. We find that apart from it, being an empty formality, it would unnecessarily increase the workload of the Committees, which are already overburdened. No doubt, the Special Leave to Appeal (C) No(s) 11831-11832/2013 has been dismissed in limine by the Apex Court on 12-4-2013, holding that upon perusal of the material, we do not find any legal and valid ground for interference. However, that by itself does not prevent us from examining the said decision on merits, The dismissal of the SLP in limine would not Lage £5 OI 4% 29 OA No.340/2017 constitute a ratio of the decision. Hence, we Proceed to consider the said decision on its' own merits as law laid down by the High Court.
64, We are unable to concur with the aforesaid view of the Division Bench of this Court in A. P, Ramtekkar's case, the reason being that the cases of fraudulent claims must be surfaced. The protection can be granted only after verification and scrutiny of the Caste claim by the Scrutiny Committee. In Madhuri Patil's case, the Apex Court has observed that spurious tribes have become a threat to the genuine tribals, who are defrauding the true Scheduled Tribes to their detriment and deprivation, snatching away their benefits. The spurious and ineligible persons, who falsely gain entry in public employment and resort to dilatory tactics and create hurdles in completion of the enquiry by the Scrutiny Committee, are not entitied to any protection. In the words of the Apex Court in Shalini's case, the cases of dishonest and ' mendacious persons who have deliberately claimed consanguinity with Scheduled Castes or Scheduled Tribes, are not entitled to Protection. One of the objects of the said Act, 4s it appears from the objects and reasons, is to provide 'for deterrent punishment for those, who indulge in fraudulent activities. Such objects cannot be defeated by dispensing with the enquiry and scrutiny by the Scrutiny Committee. On the contrary, it will be in furtherance of the objects of Providing constitutional reservations to genuine tribals. On question No. (b) in Para 55, we answer that - the protection granted in Milind's case becomes available only upon invalidation of the caste claim by the Scrutiny Committee, it would not be merely an empty formality increasing the workload of the Committees and that the protection is not available without going through the process of Serutiny Committee under sub-section (2) of Section 6 of the said Act. It is only to this extent, we ; overrule partly the decision in a. Dp. : Ramtekkar's case. -- . :
65. The factual position to which the law laid down is to be applied, is stated as under:
(a) Before coming into force of the said Act on 18-10-2001, the appointments and raye 2¥ OL 4a Promotions were made against the post reserved for Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic tribes, Other Backward Classes and special Backward Classes category (consolidatedly Called as "the backward class category") merely on the basis of the production of the Caste Certificates issued by the Competent Authorities with or without the condition of Producing a caste validity certificate.
(6) The decision in Madhuri Patil's case.
was delivered by the Apex Court on 2-9-1994, and by issuing the Government Resolutions dated 15-6-1995 and 30-6-2004, all the appointments and promotions made up to 15-6- i995 against a post reserved - for backward class category are protected and such appointments and promotions cannot be cancelled,
(c) After coming to force of the said Act on 18-10-2001, no appointments and/or Promotions could be made without Production of --
a caste validity certificate under sub-section (2) of section 6 of the said Act, but it is a-
fact that some such appointments have. been made, .
(dq) In terms of the decision in Milind's case, all the appointments that have become final up to 28-11-2000 stand Protected subject to the conditions as under:
(1) that upon verification by the Scrutiny Committee, the Caste Certificate produced to Secure an appointment, is not found to be false or fraudulent.
fii) that the appointee shall not take any advantage in terms of promotion or otherwise | after 28-11-2000 solely on the basis of his claim as a candidate belonging to any of the backward class categories in respect of which his claim is invalidated by the Scrutiny Committee, and
(iii) that it shail be Permissible For the Competent Authority to withdraw the benefits or promotions obtained after 28-11-2000 as a candidate belonging to backward class category for which the claim has been rejected.
66. In view of the law, which we have laid down, the relief of Protection of service after invalidation. of caste claim can be granted by the High Court on the basis of the judgment of the Hon'ble Supreme Court in the
--
Page 30 of 48 30 . OA No.340/2017cases .of Kavita Solunke Vs. State of Maharashtra and others, reported in 2012(5) Mh.D.J. (S.C.) 921 = 2012/8) scc 430, and Shalini vs. New English High School Association and others, reported in 2014(2) Mh.b.J. (S.C.) 913 = (2013) 16 SCC 526. The manner and the extent to which such Protection is to be made available, is laid down as under:
(a) The appointments or Promotions made up to 15~6-1995 in public employment on the basis of the Caste Certificates against a Post reserved for any of the backward class categories, stand Protected in terms of the Government Resolutions dated 15-6-1995 and 30-
6-2004 and shall not be disturbed, and the appointments that have become Final between 5-6-1995 and 28-11-2000 shail remain unaffected in view of the decision of the Apex Court in Milind's case,
(b) The grant of protection in terms of the Government Resolutions dated 15~6-1995 and 30- 6-2004 and the decision in Milind's case, "Shall be subject to the following conditions:
fi) that upon verification by the Scrutiny Committee, the Caste Certificate produced to Secure an appointment, is not found to be false or fraudulent, ;
(ii) that the appointee shal] not take any advantage: in terms of the promotion or otherwise after 28-11-2000 solely on the basis of his claim as a candidate belonging to any of the backward class categories, in respect of which his claim is invalidated by the Scrutiny Committee, and {iii} that it shall be Permissible for. the Competent Authority to withdraw the benefits.
or promotions obtained after 28-11-2000 as a Candidate belonging to backward class category for which the claim has been rejected.
(c) Any appointments that have become final against a post reserved for any. of- the categories of backward class on the basis: of the production of Caste Certificate without incorporating a specific condition in the order of appointment that it is it is subject to production of caste validity certificate after 28-11-2000 and before coming into force of the said Act on 18-10-2001 sHall also remain protected subject to the conditions mentioned in clause (b) of Para 64,
(d) After coming into force of the said Act on 18-10-2001, no benefit or appointment 31 OA No.340/2017 Page 31 of 48 can be obtained or secured jin any public employment against a Post reserved for any of the backward class categories merely on the basis of the production of a caste certificate and without Preducing 4 caste validity certificate from the Scrutiny Committee. Such appointments are not Protected and shall be fiable to. be cancelled immediately upon rejection of the caste claim by the Scrutiny Committee.
67. There cannot be a dispute that the High Court in exercise of its jurisdiction under Article. 226 or 227 of the Constitution of India cannot grant protection in employment after recording a finding that such empioyment waS secured by practising fraud or by Producing false or fraudulent caste certificate. It is urged that the High Court in exercise of its jurisdiction under Article 226 or 227 of the Constitution of India cannot grant protection in service, even if there is no fraud practised to secure an appointment, as has been held in earlier Paras. In the decision in the case of Ramesh Chandra Sankla and others vs. Vikram Cement and others, reported in (2008) 14 -scc 28, the equity jurisdiction of the High Court under Articles 226 and 227 of the Constitution is elaborated in paras 90, 91 and 98, which are reproduced below:
"90. Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey vs.. State, AIR 1952 All 788 observed: (AIR Pp. 792, para 10) .
"1O..., There are no limits, fetters or restrictions Placed on this power of 'Superintendence in this clause and the purpose of this article seems to be to make the High Court the custodian of al] justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and Properly by the bodies mentioned therein." (emphasis Supplied)"
"Ol, The power of Superintendence under Article 227 of the Constitution conferred on 32 _ OAND.340/2017
- 1 32 of 48 33 OA No.340/2017 every High Court over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. f€ can be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a Court of law but also as a Court of equity. It is, therefore, bower and also the duty of the Court to ensure that power of superintendence must "advance | the ends of justice and uproot injustice".
"OSs, From the above cases, it clearly transpires that powers under Articles 226 and
227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills vs. State of Haryana, (1980) 2 8CC 437 Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon. considerations of justice, equity and good conscience,"
68. fin the concurring décision of B. UL. Hansaria, J., as he then was, in the case of B. C. Chaturvedi vs. Union of India and others, reported in (1995) 6 SCC 749, it has been held. in paras 21 and 22 as under:
"21. HANSARIA, J. | (concurring) - I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy. J. This concurring note is to express my view on two facets of the case. The first of these relates te the power of the High Court to do "complete justice". which power has been invoked in some cases by this Court to aiter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it = 'Page 33 of 48 would be wrong to think that other Courts are not to do complete justice between the parties, if the power of modification of Punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which Inay, inter alia, be because of the poverty of the person concerned. [It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a Punishment/penalty, on such a case being made out. What a difference! May it be pointed out that Service Tribunals: too, set up with the aid of a Article 323-A have the power of striking down a legislative act."
"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify.the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the Position is well settled in law. It may. however, be stated that this Power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks of the judicial conscience."
69. In the case of Madhuri Patil, the Apex Court has considered the question of exercise _ of equity jurisdiction in Para 15, which is reproduced below:
"15. Whether appellants are entitled to their further continuance in the studies is the further question. Often the Plea of equities Or promissory estoppel would be Put forth for continuance and completion of further course of studies and usually would be found favour with . the Courts. The Courts have constitutional duty and responsibility, in exercise of the power of jits judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved. A party that seeks eguity, must come with clean hands. He who comes to the Court 34 OA No.340/2017 Luge 34 of 48 35 OA No.340/2017 with false claim, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. There is no estoppel as no promise of the social status is made by the State when a false Plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC and st Amendment Act, 1976, which is dater found to be false. Therefore, the Pilea of Promissory estoppel or equity have no application, When tt is found to be a case of fraud played by the concerned, no Sympathy and equitable considerations can come to his rescue. Nor the Plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and vary in considering such cases,"
70. It is thus well settled that the High Court exercising its jurisdiction under Article 226 or 227 of the Constitution of i India not only acts as a Court of law, but also as a Court of equity. There are no limits, fetters or restrictions Placed on this power -- of superintendence. The Purpose of it is to make the High Court the custodian of ail justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wieldéd for the purpose of seeing that the justice is meted out fairly and Properly. The power is to be exercised to advance the ends of justice. While granting relief, the Court must take into account the balancing interests and equities and granting . or withholding of relief, would depend upon the considerations of justice, equity and good conscience.
71. Chapter III under the Constitution of india does not provide a fundamental right of being appointed or Promoted to any post either to a member of any backward class community or fo a person belonging to open category. Merely because a post is reserved for any of the Scheduled Castes, Scheduled Tribes, De- notified fribes (Vimukta Jdatis), Nomadic Tribes, Other Backward Classes or Special Backward Category or Classes, and a Person belonging to such backward class category becomes eligible to compete for the post, it 7 Page 35 of 48 would not follow that he gets a right of being appointed or promoted to the Said post. If a person really belonging to any of the backward class categories for which a Post is reserved is not selected or appointed to such Post, there would be no violation of any right, much less a fundamental right of being appointed or Promoted to such post. No doubt that if Someone, who does not belong to any such category of backward class for which the post is reserved, is appointed to the post, then it necessarily deprives the genuine candidates of their position in the zone of consideration of eligible candidates. If such deprivation or detriment is by the spurious persons, who gain entry in the public employment by fraudulent means as is understood in law and retain or improve it by adopting dilatory tactics and creating hurdles in completing the enquiry by the Scrutiny Committee, then the question of Protecting such person in service by the High Court in exercise of its equity jurisdiction under Articles 226 and 227 of the Constitution of India, would not arise. There ig no fundamental right or even a statutory right to seek protection in service upon invalidation of a caste claim, but it is a question of exercise of the equity jurisdiction under Article 226 or 227 of the Constitution of india. We, therefore, do not subscribe to the view taken by the Division Benches in the cases of Vijay Deorao Nandanwar and Rakesh Sukanuji Dafade to the extent it holds (Para 34 of Rakesh Dafade's case} that protection need to be granted under Articles 14, 15, 16, 19 and 21 read with Articles 341, 342, 141 and 142 of the Constitution of India. The said decisions are overruled to that extent.
72. There cannot be any straitjacket formula' laid down either to refuse Cr grant protection in the employment either at the initial stage or at the promotional stage. The approach has to be practical and Pragmatic rather than technical and pedantic keeping in view the object and purpose of the Constitution in Providing the benefits and concessions to a Particular category of backward Class. The Court has to strike the balance between the conflicting claims of genuine candidates, who | are denied the benefits meant for them and all other persons, who honestly and genuinely ?
36 OA No.340/2017 Page 36 of 48believe and claim themselves to be belonging to a particular category for whom the concessions and benefits were meant. The Court will have to consider the facts and circumstances of each case to decide whether the protection is to be granted or refused, and if it is to be granted, up to what stage and extent,
73. Apart from bona fides of the- candidate claiming protection in service, the two tests laid down by the Apex Court in Shalini's case one was the fraudulent claim and the other was concerning eligibility to the benefits on the basis of the Caste Certificate. There are Several ways and means of Securing the benefits by practising fraud, misrepresentation, etc., which cannot be catalogued. Similarly, there are several angles to test the bona fides and consider the equity. which also cannot be catalogued. In cases of candidates belonging to castes other than Special Backward Category, the Court will have to look into the history of the controversy to find out whether the benefits were secured as a result of confusion or uncertainty prevailing in the area of eligibility to claim such benefits, as has been held. by the Apex Court in the case of R. Unnikrishnan.
74. In verification and scrutiny of the caste claim, the Serutiny Committee is normally concerned with the process by which a Caste Certificate is obtained. It is concerned with the information furnished, the statements made, and the documents produced before the Competent Authority to obtain a Caste Certificate. It is the question of correctness and genuineness of the Caste Certificate obtained and produced. Hence, the scope of enquiry should extend to the material on the basis of which the Caste Certificate is issued. The learned counsel appearing for the Serutiny Committee could not make even a statement before this Court that in any of the orders passed by the Scrutiny Committee, such exercise was carried out. Be that as it may.
Mere using the words 'false', 'fraudulent', "misrepresentation', 'collusion', 'suppression', etc., in the order of the Serutiny Committee shall not be a decisive on 37 OA No.340/2017- Page 37 of 48 38 OA No.340/2017 factor unless there is relevant material available .on record to substantiate such finding. There may be cases where the order of the Scrutiny Committee does not use the words like 'false', fraudulent', 'misrepresentation', 'collusion', 'suppression', etc., but it becomes apparent from the material available on record that it is a case of securing the benefits by practising a fraud.
75. We, therefore, do not enter into the merits of the claim and leave it for the concerned Benches to decide, on the facts and circumstances of each case, whether the Protection need to be granted or not. But we conelude in this judgment that -
(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from the employment or cancellation of appointments that have become final prior to the decision in Milind's case on 28-11-2000, | (iitj/upon invalidation of the caste claim by the Scrutiny Committee, the benefits obtained or appointments secured from 28-11-2000 upto 18-10-2001 can be withdrawn or cancelled, depending upon the terms of the employment, if any, in writing,
(iii) the benefits: obtained or appointments secured after coming into force of the said Act on 18-10-2001 Can be withdrawn or cancelled immediately upon invalidation of the caste Claim by the Scrutiny Committee, fiv)the benefit of protection in service upon invalidation of the caste claim is available . not only to the persons belonging to: "Koshti" and "Halba Koshti", but it is also available to the persons belonging to Special Backward Class category on the same terms as is available to "Koshti" and "Halba Koshti", and
(v)the claim of the persons belonging to Nomadic Tribes, Vimukta Jatis and Other Backward Class category shall be decided on the lines of the decision of the Apex Court in the case of R. Unnikrishnan and another vs. V.. kK. Mahanudevan and others, reported in 2014 (4) Mh.L.J7. (S5.C.) 1 = 2014(4) sec 434.
76. On the question No, 2 framed for the decision by the Full Bench, we must express that the question of res judicata, including fad Page 38 of 48 G2 39 OA No.340/2017 the constructive res judicata, may involve adjudication .of facts and law both. Merely because a petition was filed claiming the relief of protection and that was either withdrawn or dismissed by the Court, that by itself would not follow that the subsequent petition claiming the same relief would be barred by the principle of res judicata. Similarly, in spite of invalidation of the caste claim by the Scrutiny Committee, there may not be occasion to claim protection in employment in a petition challenging the order of the Scrutiny Committee, if by the time the petition is decided, no action is taken by the employer to terminate the services on the basis of the order of the Scrutiny Committee. In such a situation, claiming the relief of setting aside the termination would be Premature and the bar of constructive res judicata may not come in the way. it, therefore, depends upon several Factors, like the fresh cause of action arising because of intervening events requiring either to review + the earlier decision rendered or to adjudicate the controversy or prematurely claiming the relief of protection, etc. We do not think that any further opinion need to be expressed by the Full Bench on this aspect. We leave this point to be open and decided by the appropriate Division Bench, keeping in view the facts and circumstances of each case. The question No. 2 is, therefore, answered accordingly.
77, The net result of the aforesaid discussion is that the question of law at serial No. 1 is answered in the affirmative, holding that the relief of protection of service after invalidation of the caste claim can be granted by the High Court on the basis of the judgments of the Apex Court in the cases of Kavita Solunke, 2012(5} Mh.L.J. {§.C.) 921 = (2012) 8 SCC 430 and Shalini, 2014(2) Mh.L.d.
(S.C.) 913 (2013) 16 SCC 526 in the manner Stated in this judgment, and we do not think that the question of law at serial No. 2 need to be decided by the Full Bench. We, therefore, leave the said question to be decided by the Division Bench on the basis of the facts and circumstances of each case."
Page 39 of 48 40 OA No.340/201713, We further find that similar case arose for consideration before the Hon'ble High Court of judicature at Bombay in the case of Leela Dineshsingh Chauhan versus State of Maharashtra and Others, writ petition (L) No. 10702 of 2021 decided on October 22, 2021. After considering the judgement of Hon'ble Supreme Court in the case of Valsamma Paul (supra) and the G.R. issued by the State Government of Maharashtra, the Hon'ble High Court was pleased to order the protection of the service of the applicant. The findings written by the Hon'ble High Court are extracted hereinunder:-
97. A perusal of the said letter of termination itself clearly indicates that the respondent nos. 2 and 3 were insisting the the petitioner shall get her caste validated under the provisions of the said Act and had been threatening to terminate the services of the petitioner if the caste validity certificate would not be produced by the petitioner. On the other hand, it was all through out the case of the petitioner that the petitioner admittedly belonged to open category and thus could not have produced any such caste validity certificate under the provisions of the said Act. The question of the petitioner thus committing any fraud on the Constitution ofr making a false caste claim for getting an employment in the year 1994 did not arise. it is not the case of the respondent nos. 2 and 3 that the petitioner shall be deemed to have submitted a false caste claim with retrospective effect and Page 40 of 48 4] ~ QAN0.340/2017 fad deemed to have committed fraud upon the respondent nos. 2 and 3 when the petitioner was appointed to the said post of Lecturer initially.
The petitioner was appointed to the said Post by the respondent nos. 2 and 3 and approved by the University.
98. In our view, the judgment of the Hon'ble Supreme Court in case of Madhuri Patil (supra), Milind (supra), Valsamma Paul (supra), Chairman and Managing Director, Food Corporation of India (supra) and the subsequent judgments following the judgment of the Hon'ble Supreme Court in Valsamma Paul (supra) would not advance the case of the respondents in the facts and circumstances of this case for terminating the services of the petitioner. In our view since the petitioner belongs to the open category, the petitioner had rightly .not applied for any caste validity certificate nor could have applied for the such caste validity certificate undér the provisions of the said Act. The. judgment of the Hon'ble Supreme Court in the case of Managing Director, Food Corporation of India (supra) dealt with the cases where the person who did not belong to the reserved category had applied for such caste validity certificate fraudulently and had obtained the benefits. The Hon'ble Supreme, Court in the said judgment after considering the Provisions of the said Act had accordingly held that no such person who did not belong to the said caste could have applied for caste validity certificate so as to avail of the benefits guaranteed under the Constitution of India. The facts before the Hon'ble Supreme Court in the Said judgment were totally different and are distinguishable in the facts of this case.
99. There is no substance in the submission of the learned counsel for the respondent nos. 2 and 3 that in this case, the petitioner had committed fraud on the constitution. It is not the case of the respondent nos. 2 and 3 that the petitioner had applied for acquiring the status of scheduled caste by voluntary mobility into those categories or that had claimed the status of the Nomadic Tribe for the purpose of getting her employment fraudulently. The petitioner had applied for the Said post created by the respondent nos. 2? and 3 not by claiming the benefit of the Nomadic Tribe by birth fraudulently but was appointed on the basis of the Government Resolutions issued by the > | Page 41 of 48 42 . OA No.340/2017 State of Maharashtra from time to time then in force at the time of appointment of the petitioner. :
100. Insofar as the judgment of the Hon'ble Supreme Court in case of State of Maharashtra v.
Milind (supra) and in case of Chief Regional Officer, Oriental Insurance Company Ltd. (supra) relied upon by the respondent no. 2 in support of his submission that the administrative instruction/circular cannot override and cannot be contrary to the constitutional norms or statutory principles is concerned, there is no dispute about the proposition of law laid down by the Hon'ble Supreme Court in the said judgment. At the relevant time, the validity of. such Government Resolutions was accepted by the Hon'ble Supreme Court and had force of jaw in view of Article 13 of the Constitution of India.
101. Insofar as the principles laid down by the Hon'ble Supreme Court in case of M.A. Murthy v.
State of Karnataka (supra) is concerned, there is + no dispute about the same.
102, Insofar as the judgment of Hon'ble Supreme Court in case of Ashok Kumar Sonkar v. Union of India (supra) pressed in service by the learned counsel for the respondent nos. 2 and 3 is concerned, jit is held by the Hon'ble Supreme Court that if the appointment is irregular, the same can be regularized. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity. The Hon'ble Supreme Court in that case had rendered a finding that the appellant did not hold a requisite qualification as on the cut off date and therefore was not eligible.
103. In this case on the basis of the Government Resolutions prevailing on the date of the appointment allowing one, spouse to take benefit of the caste status of his or her spouse was accepted not only by the petitioner but also by the respondent nos.:2 and 3. The Petitioner had never claimed to belong to the NT category from the birth or at any point of time even till today. - After considering the judgment of the Hon'ble Supreme Court in case of Valsamma Paul (supra), this Court had protected the employment of such "Page 42 of 48 43 OA No.340/2017 employees in several matters with safeguard that the petitioner will not claim the status of such reserved caste during the course of the employment. The judgment of the Hon'ble Supreme Court in case of Ashok Kumar Sonkar (supra) thus would not assist the case of the respondent nos. 2 and 3, i04. Insofar as the judgment of Hon'ble Supreme Court in case of Smt. Sunita Singh v. State of U.P, (supra) relied upon by the learned counsel for the respondent nos. 2 and 3 is concerned, the facts before the Hon'ble Supreme Court in the said judgment were totally different. The said judgment thus would not assist the case of the respondent nos. 2 and 3. It is held by the Hon'ble Supreme Court in the said judgment that ma there cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste. It is held that the appellant was born in "Agarwal" family, which falls in general category and not in scheduled caste. Merely because her , husband belonged to a scheduled caste category, the appellant should not have been issued a caste certificate showing her caste as scheduled caste. It is held that in that regard, the orders of the authorities as well as the judgment of the High Court could. not be faulted.
105. Hon'ble Supreme Court in the said judgment held that while exercising leniency, the Court had also kept in mind that the appeliant has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate and while continuing in service based on the caste certificate. No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the high school certificate, marks sheet etc. showing her caste as Agarwal at the initial Stage, in our view, the said judgment would not assist the case of the respondent nos. 2 and 3 in this case. The petitioner in this case had never claimed to belong to NT from the date of birth when she had applied for the said job and was appointed by the respondent nos. 2 and 3. On the other hand, the respondent nos. 2 and 3 were insisting the petitioner to apply and produce the caste certificate showing that she belongs to Nomadic Tribe which the petitioner refused to comply with.
Page 43 0f 48 44 OA No.340/2017
106. There is no dispute about the proposition of law laid down by the Hon'ble Supreme Court that the powers under Article 226 are not as wide as that of the Hon'ble Supreme Court exercising the power under Article 142 of the Constitution of India, Learned counsel for the respondent nos. 2 and 3 could net point out any order of the Hon'bie Supreme Court overruling the judgment of this Court granting protection or continuity of the service without claiming any caste status after adverting te the judgment of the Hon'ble Supreme Court in case of Valsamma Paul (supra), judgment of the Hon'ble Supreme Court in case of P.V. George v. State of Kerala (supra), judgment of the Hon'ble Supreme Court in case of B.A. linga Reddy (supra). In our view, the High Court while exercising powers under Article 226 has power to do substantial justice.
107. It is not the case of the respondent nos. 2 and 3 that they have committed fraud on constitution by appointing the petitioner to the said post reserved for Nomadic Tribe though she' did not belong to the said caste by birth.
Learned counsel for the respondent nos. 2 and 3 could not distinguish the judgment of this Court in case of Vandana Vishwanath Londhe (supra) and in case of Smt. Fatima Froes Sadavarte @ Fatima Sukurina Froes v. State of Maharashtra (supra).
108. The petitioner in this case was appointed before the pronouncement of the judgment of the Hon'ble Supreme Court in case of Madhuri Patil (supra) and in case of Valsamma Paul (supra). In our view, the said Act applies to the person who claims to belong to the reserve category candidate and for the consequence in case of fraudulent claim. We accept the statement of the petitioner that she never belonged to the Nomadic Tribe and did not claim any such status in past nor. would claim the same in future till her retirement or even thereafter. The judgments of this Court referred to aforesaid after adverting to the judgment of the Hon'ble Supreme Court in case of Valsamina Paul (supra) apply to the facts of this case. In our view, the judgment of the Hon'ble Supreme Court in case of Golak Nath v. State of Punjab (supra) would not assist the case of the petitioner.
109, A perusal of the impugned order of Page 44 of 48 fermination dated 8th June, 2021 indicates that the services of the petitioner in the respondent no. 2 college has been terminated on the ground that the petitioner failed to submit the caste validity certificate though was called upon toa produce by the respondent nos. 2 and 3 and was warned that in case of failure of the petitioner, the respondent nos. 2 and 3 would be constrained to take appropriate steps. In our view, since the Petitioner never claimed to belong to the reserved category and always claimed to be an open category to the knowledge of the respondent nos. 2 and 3, there was no question of the petitioner producing the caste validity certificate belonging to the reserved category. The termination of the services of the petitioner by the letter dated 8th June, 2021 by the respondent nos. 2 and 3 is thus illegal and deserves to be quashed and set aside. The letter dated 1ith February, 2021 addressed by the respondent nos. 2 and 3 to the petitioner expressing the intention to terminate the services of the petitioner is also quashed and set aside.
110. We, therefore, pass the following order:
(a) The letter of termination dated 8th June, 2021 and letter dated 11th February, 2021 issued by the respondent no. 2 expressing the intention to terminate the services of the betitioner are quashed and set aside. .
(b) The respondent nos. 2 and 3 shall] continue to employ the petitioner as full time assistant Professor and to grant promotions which She is entitled to till ghe attains the age of Superannuation and pay the wages and other benefits to the petitioner along with selection grade w.e.f. Ist September, 2005 till date.
(Cc) The respondent nos. 2 and 3 also Shall pay the arrears of wages if any to the petitioner within four weeks from today.
(dq) It is made clear that the petitioner shal] not claim to belong to any reserved category at any point of time.
fe) The service record of the petitioner shall be corrected by the respondent nos. 2 and 3 by incorporating the suitable entry therein to the o> 2 age 45 of 48 45 OA No.340/2017 46 OA No.340/2017, effect that the petitioner does not belong to any reserve category.
{f) Writ petition is allowed in the aforesaid terms. Rule is made absolute in the aforesaid terms. No order as to costs.
14g, Viewed in the light of the above judgement of jurisdiction of High Court in the case of Arun v. State of Maharashtra {supra) and Leela Dineshsingh Chauhan vs. State of Maharashtra (supra), we are of the view that the services of the applicant to the post of Postwoman for which she Was appointed in 1992 deserves to be protected. However, the applicant will not claim any benefit being the wife of a Scheduled Caste. husband after the Government of Maharashtra issued the G.R. dated 07th May, 1999. The submission of the learned counsel for the respondents that the applicant has not raised any question to reinstate her on the post of Postwoman without consequences including back wages is not correct. We find that in relief clause in para (b) on page no. 24 of the OA, the 'applicant has categorically sought the direction of this Tribunal to the respondent no. 3 to Page 46 of 48 47 OA No.340/2017 withdraw and /or cancel the impugned order of dismissal from service -dated 5.5.2011 and to reinstate the applicant on the post of Postwoman with all consequences including back wages. In Clause (d) of the relief clause, she has submitted that such other and further equitable order be passed as this Tribunal may deem fit ~and proper.
15. . In view of the above, we find that the impugned order dated 5.5.2011 dismissing the applicant from service and order dated 14.2.2014 passed by the appellate authority and order dated i7.1.2017 passed by the revisionary authority cannot be sustained and hence, the Same are quashed and set aside. The respondents are directed to reinstate the applicant to .the original post of Postwoman. The respondents are further directed to make the necessary changes in her service record and not to treat her as Scheduled Caste. for any future promotion or benefit. The applicant is directed to work as Postwoman which is the original post for which Page 47 of 48 48 OA No.340/2017 she was appointed on the basis of her marriage to a Schedule Caste person. However, no further benefit being the wife of a Scheduled Caste person will be allowed to her for the purpose of promotion in the sc category or any other benefit / concession available to the sc category candidates. The respondents are directed to reinstate the applicant within a period of three months from the date of receipt of a certified copy of this order with back wages. The OA is allowed in terms of above order and direction. No orders as to cost.
A (Shri Krishna) | (Harvikfder Kaur Oberoi) Member (A) Member (J) Ma/nk.
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