Bombay High Court
All India Adiwasi Employees Federation ... vs The Reserve Bank Of India & Others on 13 April, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Swapna Joshi
Judgment wp1562.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1562/2004 AND CONTEMPT PETITION NO.
238/2016; WRIT PETITION NO. 258/2014 AND CONTEMPT PETITION
NO.34/2014 AND WRIT PETITIONNO. 6740/2016.
...........
(1) WRIT PETITION NO. 1562/2004
AND CONTEMPT PETITION NO. 238/2016.
1. All Indian Adivasi Employees Federation
a Trust and Society having registered
No. MAH/159/67, having its Central
Office at 233, Gondwana Vikas Mandal
Tukadoji Nagar, Manewada Road,
Nagpur through its Secretary, Madhukar
Wuike, Central Committee, Nagpur
tahsil and District Nagpur.
2. Motiram Chhatiram Kangale,
aged about 55 years, Occupation - service,
as Coin Note Examiner-cum-clerk
Grade-I, resident of Plot no.48,
Ujjwal Society, Jaitala Road,
Nagpur. ... PETITIONERS.
VERSUS
1. The Reserve Bank of India,
through its Regional Director, Reserve
Bank of India Building, Dr. Raghavendra
Rao Road, Opposite Vidhan Bhavan,
Civil Lines, Nagpur.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
2
2. The Chief General Manager,
I/C Department of Administration
and Personnel Management,
Reserve Bank of India, Central Office
Dr. Annie Besant Road, Garment House
Worli, Mumbai.
3. The Union of India,
through its Secretary, Ministry of
Finance, Department of Economic Affairs
Banking Division, "Jeevandeep Building"
Parliament Street, New Delhi.
4. The State of Maharashtra,
through nits Secretary, Ministry of
Tribal Development, Mantralaya
Mumbai. ... RESPONDENTS
.
AND
CONTEMPT PETITION NO. 236/2016.
All Indian Adivasi Employees Federation
a Trust and Society having registered
No. MAH/159/67, having its Central
Office at 233, Gondwana Vikas Mandal
Tukadoji Nagar, Manewada Road,
Nagpur through its Secretary ... PETITIONER.
VERSUS
1. Ku.J. Jivani
Regional Director,
Reserve Bank of India
Building, Dr. Raghavendra
Rao Road, Opposite Vidhan Bhavan,
Civil Lines, Nagpur.
2. Dr.D.B.V. Raju,
Assistant General Manager,
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
3
Dr. Raghavendra Rao Road,
Opposite Vidhan Bhavan,
Civil Lines, Nagpur. ... RESPONDENTS
.
WITH
(2) WRIT PETITION NO. 258/2014
AND CONTEMPT PETITION NO. 34/2014.
1. All Indian Adivasi Employees Federation
a Trust and Society having registered
No. MAH/159/67, having its Central
Office at 233, Gondwana Vikas Mandal
Tukadoji Nagar, Manewada Road,
Nagpur.
2. Nilay s/o Shyam Band,
aged about 52 years, Occupation - service,
resident of 58, Indraprastha Layout,
Swawalambinagar, Nagpur.
3. Vinod s/o Prabhakar Deshmukh,
aged about 52 years, Occupation - service,
resident of Badkas Square, Mahal,
Nagpur.
4. Shriniwasan Kumar,
aged about 52 years, Occupation - service,
resident of Sainagar, Near Manewada,
square, Nagpur.
5. Kishor Govindrao Sonwane,
aged about 52 years, Occupation - service,
resident of Plot No.45, Pundlik Layout,
Bharatnagar, Amravati road, Nagpur. ... PETITIONERS.
VERSUS
1. The Reserve Bank of India,
through its Regional Director, Reserve
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
4
Bank of India Building, Dr. Raghavendra
Rao Road, Opposite Vidhan Bhavan,
Civil Lines, Nagpur.
2. The Chief General Manager,
I/C Department of Administration
and Personnel Management,
Reserve Bank of India, Central Office
Dr. Annie Besant Road, Garment House
Worli, Mumbai.
3. The Union of India,
through its Secretary, Ministry of
Finance, Department of Economic Affairs
Banking Division, "Jeevandeep Building"
Parliament Street, New Delhi.
4. The State of Maharashtra,
through nits Secretary, Ministry of
Tribal Development, Mantralaya
Mumbai-400032.
5. Gajanan Marotrao Nimje,
aged about 57 years, Occupation - Manager (Issue),
6. Chandrakant Balaji Paunikar,
aged about 58 years, Occupation - P.S.(Gr.A)
H.R.M.D.
7. Girish Baburao Nandanwar,
aged about 47 years, Occupation -
A.M.(Lounge), H.R.M.D.
8. Shantaram Baburao Ninawe,
aged about 56 years, Occupation - Asstt.
Manager (Banking)
9. Ramesh Narayan Sonkusare,
aged about 55 years, Occupation - Asstt
Manager (Issue),
10. Ramesh Hiramanji Hedaoo,
aged about 59 years, Occupation - Asstt.
Manager (NCC).
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
5
11. Kashinath Shravan Khot
aged about 57 years, Occupation -
Asst. Manager (Issue),
12. Smt. Hemlata Dinkar Kumbhare
aged about 48 years, Occupation - Asstt.
Manager (P.D.O.)
13. Anilkumar Ganpatrao Deolikar
aged about 58 years, Occupation -
Special Assistant (Cash Department),
14. Smt. Nirmala Wamanrao Fegade
aged about 57 years, Occupation -
Senior Assistant (R.P.C.D.)
15. Goving Beniram Kohad,
aged about 57 years, Occupation -
Sr. Assistant (H.R.M.D.)
16. Harishchandra Ganapati Bharadbhunje
aged about 52 years, Occupation - Sr.
Assistant (C.A.S.)
17. Prakash Anantrao Rambhad,
aged about 57 years, Occupation - Sr.
Assistant (P & S),
18. Dipak Sitaramji Patil
aged about 55 years, Occupation - Sr.
Assistant (P.D.O.).
19. Krishna Narayan Mohadikar
aged about 56 years, Occupation -
Sr, Assistant (C.A.S.)
20. Janardhan Laxmanrao Mahajan
aged about 56 years, Occupation - Sr..
Assistant (H.R.M.D.)
21. Kirankumar Abaji Sorte
aged about 57 years, Occupation - Sr.
Assistant (C.A.S.)
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
6
22. Ashok Damuji Tarnekar,
aged about 56 years, Occupation - Sr.
Assistant (U.B.D.),
23. Ratnakar Wasudeorao Admane
aged about 57 years, Occupation - Sr.
Assistant (U.B.D.).
24. Dhyaneshwar Wasudeorao Dekate
aged about 59 years, Occupation -
Sr, Assistant (P.D.O.)
25. Vinod Biharilal Chourasia
aged about 56 years, Occupation - Sr..
Assistant (C.E.S..)
26. Manohar Balaji Barapatre
aged about 56 years, Occupation - Sr.
Assistant (Issue Department.)
27. Janardhan Narayan Sonkusale,
aged about 56 years, Occupation - Sr.
Assistant (Issue Department),
28. Ganpati Purushottamji Kumbhare
aged about 51 years, Occupation - Sr.
Assistant (Issue department.).
29. Hemantkumar Prabhakar Kumbhare
aged about 58 years, Occupation -
Sr, Assistant (C.e.S.)
30. Tulsidas Baliram Nandanwar
aged about 56 years, Occupation - Sr..
Assistant (C.A.S.)
31. Balwant Hemchandra Dharmik
aged about 57 years, Occupation - Sr.
Assistant (HRMD)
32. Ravindra Mahadev Parhate
aged about 55 years, Occupation - Sr.
Assistant (U.B.D.),
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
7
33. Bhojraj Balaji Pounikar
aged about 56 years, Occupation - Sr.
Assistant (Banking).
34. Janrao Uasrao Nimje
aged about 56years, Occupation -
Sr, Assistant (HMRD)
35. Keshao Narayan Karamkar
aged about 56 years, Occupation - Sr..
Assistant (HRMD.)
36. Vijay Shamrao Kumbhare
aged about major, Occupation - Sr.
Assistant (PDO)
37. Mukesh Ramchandra Mohadikar
aged about 55 years, Occupation - Sr.
Assistant (CES),
38. Udaysingh Baldeosingh Dinore
aged about 57 years, Occupation - Sr.
Assistant (Issue Department).
39. Rajkumarsingh Gurudayalsingh Chauhan
aged about 54 years, Occupation -
Sr, Assistant (C.E.S.)
40. Dewaji Jagannath Parate
aged about 54 years, Occupation - Sr..
Assistant (Issue Department.)
41. Anilkumar Suratlal Chaurasia
aged about 55 years, Occupation - Sr.
Assistant (PDO.)
42. Liladhar Laxmanrao Kumbhare
aged about 54 years, Occupation - Sr.
Assistant (Bankind Department.),
43. Dilip Shrawanji Khadatkar
aged about 54 years, Occupation - Sr.
Assistant (C.A.S.).
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
8
44. Smt. Maya Limdeo Parate
aged about 52 years, Occupation -
Sr, Assistant (Issue Department)
45. Anil Sudhakar Rambhal
aged about 53 years, Occupation - Sr..
Assistant (C.E.S..)
46. Smt. Bharti Raghunandan Parsatwar
aged about 48 years, Occupation - Sr..
Assistant (PDO.)
47. Dilip Panjabrao Hedau
aged about 56 years, Occupation - Sr..
Assistant (Issue department)
48. Purushottam Ramchandraji Welekar
aged about 55 years, Occupation - Sr..
Assistant (C.A.S.)
49. Smt. Manju Umesh Naidu
aged about 48 years, Occupation - Sr..
Assistant (HRMD.)
50. Ramesh Kisanrao Dekate
aged about 56 years, Occupation - Sr..
Assistant (Issue Department )
51. Suresh Yadaorao Ghaywat
aged about 57 years, Occupation - Sr..
Assistant (Cash department)
52. Balkrishna Mahadeorao Ninawe
aged about 58 years, Occupation - Sr..
Assistant (Cash Dept.)
53. Prabhakar Daulatrao Barwad
aged about 58 years, Occupation - Sr..
Assistant (Cash Deptt)
54. Ramkrishna Motiram Parate
aged about 57 years, Occupation - Sr..
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
9
Assistant (Cash Deptt)
55. Yashwant Tikaram Bhagat
aged about 55 years, Occupation - Sr..
Assistant (Cash Deptt)
56. Bhaurao Kisanji Ambolikar
aged about 56 years, Occupation - Sr..
Assistant (Cash Deptt)
57. Jagannath Chudaman Ninawe
aged about 53 years, Occupation - Sr..
Assistant (Cash Deptt)
58. Wasudeo Mahadeorao Limje
aged about 56 years, Occupation - Sr..
Assistant (Cash Deptt)
59. Janglu Mahadeorao Randive
aged about 56 years, Occupation - Sr..
Assistant (Cash Deptt)
60. Vijay Bapurao Kohad
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
61. Govind Somdeorao Gadikar
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
62. Pradip Shankarrao Ninawe
aged about 48 years, Occupation - Sr..
Assistant (Cash Deptt)
63. Choith Virumal Khatwani
aged about 50 years, Occupation - Sr..
Assistant (Cash Deptt)
64. Kamlakar Vithalrao Barapatre
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
65. Smt. Aarchana Shirish Gajralwar
aged about 47 years, Occupation - Sr..
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
10
Assistant (Cash Deptt)
66. Diwakar Madhaorao Likhar
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
67. Shyamrao Harishchandra Dhabekar
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
68. Rajendra Yashwantrao Hedau
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
69. Rajaram Barshya Ramtekkar
aged about 49 years, Occupation - Sr..
Assistant (Cash Deptt)
70. Smt. Pushpawati Anil Marsattiwar
aged about 48 years, Occupation - Sr..
Assistant (Cash Deptt)
71. Smt. Kalpana Rajkumar Dekate
aged about 48years, Occupation - Sr..
Assistant (Cash Deptt)
72. Rajkumar Shravan Dekate
aged about 49 years, Occupation - Sr..
Assistant (C.A.,S)
73. Bhaskar Somaji Chichghare
aged about 55 years, Occupation - Sr..
Assistant (Issue Deptt)
74. Madhukar Bhauraoji Sorte
aged about 50 years, Occupation - Sr..
Assistant (C.A.S.)
75. Smt. Vijaya Satish Randive
aged about 51 years, Occupation - Sr..
Assistant (HRMD)
76. Smt. Nandani Ramesh Hedaoo
aged about 55 years, Occupation - Sr..
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:08 :::
Judgment wp1562.04
11
Assistant (Issue Deptt)
77. Deepak Shantaram Brapatre
aged about 46 years, Occupation - Sr..
Assistant (HRMD)
78. Ramchandra Chandan Sonkusare
aged about 52 years, Occupation - Sr..
Assistant (UBD)
79. Prabhakarkumar Namdeorao Sadavarte
aged about 56 years, Occupation - Sr..
Assistant (C.,A.S.)
80. Yogeshwar Vithobaji Binekar
aged about 57 years, Occupation - Spl..
Assistant (Banking)
81. Chandrakant Dashrath Barde
aged about 57 years, Occupation - HWP.
Assistant (Rajabhasha)
82. Vasant Mahadeo Umredkar
aged about 58 years, Occupation - WP.
Assistant (HRMD)
83. Maroti Jairamdas Burde
aged about 56 years, Occupation - WP.
Assistant (Issue Deptt)
84. Ramchandra Damaji Devikar
aged about 58 years, Occupation - WP.
Assistant (HRMD)
85. Fulchand Umraoji Parate
aged about 53 years, Occupation - WP.
Assistant (UBD)
86. Khemraj Bhaskar Nandankar
aged about 54 years, Occupation - WP.
Assistant (UBD)
87. Nilkanth Narayan Kumbhare
aged about 52 years, Occupation - WP.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
12
Assistant (Rajbhasha)
88. Ashok Fakirchand Asai
aged about 56 years, Occupation - WP.
Assistant (Banking Deptt)
89. Ashok Dharamraj Bhatkhore
aged about 55 years, Occupation - WP.
Assistant (Banking Deptt)
90. Smt. Sheetal Chandrakant Kale
aged about 49 years, Occupation - WP.
Assistant (HRMD)
91. Mohan Chintamanrao Hedaoo
aged about 56 years, Occupation - WP.
Assistant (CAS)
92. Rajendra Bhaurao Borkar
aged about 52 years, Occupation - WP
Assistant (HRMD)
93. Nilkanth Ramchandra Dekate
aged about 48 years, Occupation - Tel.
Operator (HRMD)
94. Hemraj Jagannath Chandekar
aged about major, Occupation - Secr
Assistant (HRMD)
95. Ganesh Haribhau Nimje
aged about 50 years, Occupation -
Machine Op.(CES)
96. Ajaykumar Vishwanath Asai
aged about 47 years, Occupation
Machine Op. (NCC)
97. Gopichand Nathuji Dhote
aged about 49 years, Occupation - Sr..
Office Attdt (Issue)
98. Digambar Ganuji Ninawe
aged about 52 years, Occupation - Sr..
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
13
Off. Attdt.(Issue)
99. Bharat Bhayyaji Pekade
aged about 54 years, Occupation - Sr..
Off. Attdt.(HRMD)
100. Suresh Narayan Bhunje
aged about 55 years, Occupation -
Off. Attdt.(Issue)
101. Chandrashekhar Wasudeo Hedao
aged about 49 years, Occupation -
Off. Attdt (Cash Deptt)
102. Bharat Mahadeorao Shelke
aged about 56 years, Occupation -
Offr. Attdt. (Cash Deptt)
103. Dilip Tukaram Binekar
aged about 49 years, Occupation -
Off. Attdt.(Issue)
104. Prakash Ramaji Mohadikar
aged about 52 years, Occupation -
Offr. Attdt.(HRMD)
105. Ashok Ganapatraoji Kumbhare
aged about 52 years, Occupation -
Off. Attdt. (HRMD)
106. Sudhakar Ganapatrao Burde
aged about 52 years, Occupation -
Off. Attdt (Estate)
107. Haribhau Vithobji Mandulwar
aged about 54 years, Occupation -
Off. Attdt (Banking)
108. Prabhu Mansaram Barapatre
aged about 47 years, Occupation -
Off. Attdt (C.E.S.)
109. Hiraman Jairam Khapekar
aged about 54 years, Occupation -
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
14
Off. Attdt (CES)
110. Keshav Kawaduji Nipane
aged about 53 years, Occupation -
Off. Attdt (CAS)
111. Dashrath Sukal Raut
aged about 55 years, Occupation -
Off. Attdt (Cash Deptt)
112. Krishna Ramaji Dhanorkar
aged about 54 years, Occupation -
Off. Attdt (Cash Deptt)
113. Devidas Mahadeorao Waghade
aged about 56 years, Occupation -
Off. Attdt (Cash Deptt)
114. Vijaykumar Deorao Pakhale
aged about 54 years, Occupation -
Off. Attdt (Cash Deptt.)
115. Namdeo Nagorao Dhakate
aged about 54 years, Occupation -
Off. Attdt (Cash Deptt.)
116. Laxman Narayan Bawane
aged about 53 years, Occupation -
Off. Attdt (Cash Deptt.)
117. Tukaram Raghoba Prachand
aged about 55 years, Occupation -
Off. Attdt (Cash Deptt.)
118. Mahadeo Vithoba Khapekar
aged about 53 years, Occupation -
Off. Attdt (Cash Deptt.)
119. Namdeo Lahanuji Sonkusre
aged about 54 years, Occupation -
Off. Attdt (Cash Deptt.)
120. Khusahl Mahadeo Nikhare
aged about 52 years, Occupation -
Off. Attdt (HRMD.)
121. Narayan Shamrao Paunikar
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
15
aged about 53 years, Occupation -
Off. Attdt (HRMD.)
122. Kishor Babanrao Tadurwar
aged about 53 years, Occupation -
Off. Attdt (CAS.)
123. Vinayak Harisao Barapatre
aged about 52 years, Occupation -
Off. Attdt (PDO.)
124. Nirmala Purankar Purankar
aged about 45 years, Occupation -
Off. Attdt (CAS.)
125. Prabhakar Nathuji Dhapodkar
aged about 58 years, Occupation -
Off. Attdt (CAS.)
126. Purushottam Namdeorao Hingnekar
aged about 54 years, Occupation -
Off. Attdt (P&S.)
127. Pramod Madhukarrao Samudrawar
aged about 53 years, Occupation -
Sr. Tech. Attndn (CAS.)
128. Harishchandra Shrawan Hedaoo
aged about 52 years, Occupation -
Asstt. Cook (OLDR.)
129. Santosh Motiram Dhapodkar
aged about 54 years, Occupation -
Ctrg. Attdt (OLDR.)
130. Gangadhar Mahadeo Mahajan
aged about 48 years, Occupation -
Ctrg. Attdt (OLDR.)
131. Ashok Motiram Pulewale
aged about 52 years, Occupation -
Maint. Attdt (P&S.)
132. Ishwar Mangaldas Gokhale
aged about 55 years, Occupation -
Maint. Attdt (P&S.)
133. Deepak Mahadeorao Bangde
aged about 54 years, Occupation -
Maint Attdt (P&S.)
134. Vasant Baliram Warhade
aged about 53 years, Occupation -
Maint Attdt (P&S.)
135. Keshaorao Jagan Dhapodkar
aged about 53 years, Occupation -
Maint. Attdt (P&S.)
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
16
136. Vijay Sewadas Hedau
aged about 56 years, Occupation -
Maint. Attdt (P&S.)
137. Tanaji Chintaman Burde
aged about 56 years, Occupation -
Maint. Attdt (P&S.)
138. Bhagwandas Haridas Hedaoo
aged about 55 years, Occupation -
Maint. Attdt (P&S.)
139. Arun Ganpatrao Nandanwar
aged about 49 years, Occupation -
Off. . Attdt (Cash Deptt.)
140. Suresh Mannalalji Bariya
aged about 48 years, Occupation -
Driver (P&S.)
Respondent nos. 5 to 140 c/o. Reserve
Bank of India, HRMD Section
Raghawendra Rao, Marg,
Nagpur 440 001. ... RESPONDENTS
.
AND
CONTEMPT PETITION NO. 34/2014.
1. All Indian Adivasi Employees Federation
a Trust and Society having registered
No. MAH/159/67, having its Central
Office at 233, Gondwana Vikas Mandal
Tukadoji Nagar, Manewada Road,
Nagpur.
2. Nilay s/o Shyam Band,
aged about 52 years, Occupation - service,
resident of 58, Indraprastha Layout,
Swawalambinagar, Nagpur.
3. Kishor Govindrao Sonwane,
aged about 52 years, Occupation - service,
resident of Plot No.45, Pundlik Layout,
Bharatnagar, Amravati road, Nagpur. ... PETITIONERS.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
17
VERSUS
Ashok Kumar Shadangi,
Incharge Regional Director and
Chief General Manager of the
Reserve Bank of India Building,
Dr. Raghavendra Rao Road,
Opposite Vidhan Bhavan,
Civil Lines, Nagpur. ... RESPONDENT
.
WITH
(3)
WRIT PETITION NO. 6740/2016.
1. Shri Ananta Gajanan Gaiki,
Aged about 48, Occupation- Service,
presently holding post of AG-I (G)
2. Shri Dinesh Moreshwar Dixit,
Aged about 46, Major, Occupation -
Service, presently holding the post
of AG-I(D).
3. Shri Purushottam Sitaram Vaidya,
Aged about 49, Major, Occupation -
Service, presently holding the post
of AG-I(D).
4. Shri Mulichand Tekiram Dani,
Aged about 45, Major, Occupation -
Service, presently holding the post
of AG-I(D).
5. Shri Shrish Manoharrao Bhute,
Aged about 47, Major, Occupation -
Service, presently holding the post
of AG-I(Min).
All employees of Food Corporation
of India, Office at Chuna Bhatti,
Ajni, Nagpur 440 015. ... PETITIONERS.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
18
VERSUS
1. Union of India,
through Ministry of Consumer Affairs
Food and Public Distribution,
Krishi Bhawan, New Delhi 110 001.
2. The Food Corporation of India,
A Government of India Undertaking,
having its head office at 16-20,
Barakhamba Lane, New Delhi
110001, through its Chairman
and Managing Director.
3. The Food Corporation of India,
Regional Office (Maharashtra)
"FCI Building" Rajendra Nagar,
Dattapada Road, Borivali (East)
Mumbai 400 066, through its
General Manager.
4. The Food Corporation of India,
Zonal Office (West) "FCI Building"
Rajendra Nagar, Dattapada Road, Borivali (East)
Mumbai 400 066, through its
Executive Director.
5. The Food Corporation of India,
District Office Chunabhattai Road,
Ajani, Nagpur 440 015
through its Area Manager. (Administration)
6. Shri S.G. Barapatre,
Aged Major, occupation - service.
7. Shri A.B. Sonkusare,
Aged Major, Occupation - service.
8. Shri M.A. Parate,
Aged major, occupation - Service.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
19
All employees of Food Corporation
of India, office at Chuna bhatti,
Ajani, Nagpur 440 015. ... RESPONDENTS
.
---------------------------------
Shri S.P. Bhandarkar, Advocate for Petitioners.
Shri M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde,
Advocate for Respondent - Reserve Bank of India.
Shri C.S. Samudra, Advocate for Respondent - Food Corporation of India.
Shri S.A. Chaudhari, Ms. M. Chandurakr, Advocates for Respondent - Union of
India.
Ms. T. Khan, A.G.P. for Respondent - State.
Shri S.B. Wahane, Shri A.A. Naik, Shri M.Shareef and Shri M.D. Lakhey,
Advocates, for Respondent - individual employees.
----------------------------------
CORAM : B.P. DHARMADHIKARI &
SMT. SWAPNA JOSHI
, JJ.
DATE OF RESERVING JUDGMENT : 20.02.2018
DATE OF PRONOUNCEMENT : 13.04.2018
JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Facts in detail are not necessary. Question involved in all these matters is - Whether the employees who have given up their caste claim, and hence the same has never been subject to caste verification by the Scrutiny Committee functioning under Section 6 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 20 Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act, 2000 (Maharashtra Act No. 23 of 2001), can continue in employment because of Division Bench judgment of this Court dated 01.11.2012 in Writ Petition Nos. 5198/2009, 2126/2010 and 1512/2004. It is not in dispute that Writ Petition No. 5162/2004, was also to be decided along with these three Writ petitions, but, then has not been decided and is being considered by us now.
2. In Writ Petition No. 5198/2009, there were total 25 petitioners and first petitioner is one A.P. Ramtekkar. The judgment has been reported in his name as (2013) 2 Mah.L.J. 419-- A.P. Ramtekkar v. Union Of India and while arguing, the respective Counsel have referred to this judgment, as judgment in case of Shri A.P. Ramtekkar. Employer of these 25 petitioners was/is Food Corporation of India.
3. Writ Petition No. 2126/2010, was filed by 33 petitioners and Food Corporation of India was their employer. Writ Petition No.1512/2004 is by Reserve Bank of India Employees Association and their employer was Reserve Bank of India. In Writ Petition No.1512/2004, apart from the employees Association, Reserve Bank of India Halba Karmachari Sanstha was petitioner no.2 and Reserve Bank Scheduled Tribe Employees Joint Action Committee was petitioner no.3. There are 5 individual employees as petitioners at Sr. Nos. 5 ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 21 to 8.
4. Division Bench in A.P. Ramtekkar held that all Halba Koshti whose appointment had become final on 28.11.2000, are entitled to protection of their services as held in 2001 (1) Mh.L.J. 1 (State of Maharashtra .vrs. Milind Katware and others). It found that Office Memorandum dated 10.08.2008, issued by the Union of India was also on same lines. In paragraph no.14, this Division Bench found insistence of employer and its compelling petitioners before it to get the caste certificate verified by the scrutiny committee under the 2001 Act, unjustified as they had already given up their caste claim, and as such verification would be an empty formality. In Writ Petition No. 1512/2004, three associations were also the petitioners but, petition at their instance was dismissed observing that employee in position to agitate his individual claim must do so. Therefore, only grievance of petitioner nos. 4 to 8 was entertained in that matter. Again identical relief was given to petitioners no.4 to 8. Benefits secured by them after 28.11.2000 on the basis of their status as Scheduled Tribe were allowed to be withdrawn and that liberty was given to employer. It was thus, open for the employer to restore their position as on 28.11.2000.
5. It appears that Special Leave Petition filed by the Food Corporation of India vide Special Leave Petition Nos. 11831-11832 of 2013 was dismissed by the Hon'ble Supreme Court on 12.04.2013. Review Petitions (Civil) Nos. 497- ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 22 498 of 2014 were also dismissed on 26.02.2014.
6. It is in this background that we have heard Shri S.P. Bhandarkar, learned Counsel for petitioners, Shri M.G. Bhangde, learned Senior Counsel for employer - Reserve Bank of India, Shri C.S. Samudra, learned counsel for Food Corporation of India, Shri S.A. Chaudhari, learned Counsel for Union of India. Shri A.A. Naik, Shri M.Shareef and Shri M.D. Lakhey, learned Counsel have argued the cases of individual employees arrayed as respondents.
7. Shri Bhandarkar, learned counsel submits that petitioners represent the cause of genuine tribals and open category employees, who have suffered because of wrongful employment procured by playing fraud by individuals. He states that above mentioned Division Bench judgment in case of A.P. Ramtekkar, has been upset by the Full Bench in case of Arun Vishwanath Sonone .vrs. State of Maharashtra and ors (2015 (1) Mh.L.J. 457), and hence, employees whose caste-claims have not been validated, are not entitled to any protection in employment. By giving up their respective castes, employees have accepted that they entered service illegally and hence, have no right to post. He submits that these employees therefore, cannot claim restoration to position as on 28.11.2000 or on any other date, and they cannot continue to occupy any post in public employment to the prejudice of other open caste or reserved caste employee. He claims that those posts are meant to be held by persons who ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 23 have been legally recruit as per law.
8. Inviting attention to later judgment of the Hon'ble Supreme Court in case of Chairman and Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (2017 (4) Mh.L.J. 898 ), he submits that use of concept of prospective overruling by the Full Bench to extend protection to employees whose caste claims have been invalidated, is found unsustainable and therefore, Full Bench judgment itself has been set aside. Thus, after this judgment in case of Chairman and Managing Director .vrs. Jagdish (supra), no employee whose caste claim is invalidated, can claim any right to continue in employment. He adds that therefore, judgment of Hon'ble Supreme Court does not mean restoration of view taken by the Division Bench in case of A.P. Ramtekkar. Full Bench allowed protection only in limited cases, where caste claim was invalidated, but, Scrutiny Committee did not find any fraud played by such incumbent. The Hon'ble Supreme Court has declared that invalidation of caste claim itself tantamounts to wrongful entry in public employment, and therefore, ouster therefrom must follow. He states that in view of this position, the employees who have been given benefit of protection by the Food Corporation of India or the Reserve Bank of India by adhering to the Division Bench judgment in case of A.P. Ramtekkar, must also walk out. The employees who gave up caste claim in order to avoid verification exercise, do not stand on better footing than those whose caste claims are invalidated. He submits that ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 24 Act No. 23 of 2001 recognizes only caste validity certificate issued after due verification by the Scrutiny Committee and in absence of such certificate, employer respondents before this Court cannot permit any individual who has given up his caste to remain in employment.
9. As respondents have raised challenge to locus of petitioners, he has placed reliance upon judgment in case of Akhil Bhartiya Soshit Karmachari Sangh (Railway) .vrs. Union of India and others (AIR 1981 SC 298 (1), to establish locus. Inviting attention to pleadings in Writ Petition No. 1562/2004, he submits that employees who have approached this Court are in open category. He has also invited our attention to the fact that respondents mentioned in paragraph no.11, have been promoted as Special Assistants and Assistant Manager (A), which militates with seniority and rights of petitioners. He strongly places reliance upon judgment of Hon'ble Supreme Court in case of Chairman and Managing Director .vrs. Jagdish (supra), to show how objection on the basis of locus is misconceived. Respondent nos. 5 to 140 have been absorbed in open category and have been promoted in open category, without fixing their seniority, as such from the date of joining. Posts which have become vacant because of this exercise have not been filled in thereafter. Our attention is invited to pleadings in paragraph nos. 6,8 and 9 of Writ Petition in an effort to demonstrate that by shifting these protected employee to open category, undue favour has been shown to them. It is claimed that the ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 25 promotional post are acquired by these respondents on the strength of their promotion after 28.11.2000, as they belong to Scheduled Tribe category. Respondent nos. 5 to 140 ought to have been placed below the last candidate in open category as on 28.11.2000, but, this has not been done. Petitioner no.2 who is senior to respondent nos. 5 to 140, is denied promotion and consequential benefits. Reserve Bank of India has shown respondent nos. 5 to 140 and even petitioner no.2 with their designation as Special Assistant, and they have also been paid arrears of Rs. 3 lakhs each, from the year 2005.
10. About 139 employees have given undertaking accordingly subject to outcome of the Writ Petition.
11. Promotion order issued by the Reserve Bank of India on 24.12.2013, is assailed by pointing out that these employees have been given retrospective promotion, and this promotion and date is because they passed departmental examination as Scheduled Tribe candidate. He contends that for passing departmental examination, concession is given to Scheduled Tribe candidates and as that concession ceased due to giving up of caste and not available, the order is erroneous. He further states that these promotions are shown notionally because of Writ Petition No. 16837/2011, then pending in the Rajasthan High Court.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 26
12. He has taken us through the additional submissions filed by the petitioners and observations of Hon'ble Supreme Court in paragraph nos. 9, 10 and 12 of its judgment in case of B.H. Khawas .vrs. Union of India and others- (2016) 8 SCC 715). Retrospective order of promotion given to respondents on 30.05.2016 is contrary to the interim orders in Writ Petition No. 1562/2004. Even on 18.04.2017, retrospective orders of promotion have been issued. Inviting attention to clause 24 in the appointment order, he states that appointment of respondents was provisional and subject to verification of caste- claim. Their services ought to have been terminated forthwith and necessary action under Indian Penal Code should have been taken.
13. On 11.08.2015, in Writ Petition No. 1562/2004 this Court passed an order and that order is in supercession and modification of all earlier interim orders. Employer was asked to grant promotion on the post reserved for Scheduled Tribe category to only those who were holding validities. The employees who have given up their caste claim, were directed to be treated as employees belonging to open category to be promoted accordingly. Direction was issued to rework the roaster. He contends that in this situation, judgment in case of A.P. Ramtekkar dated 01.11.2012, cannot be construed as judgment in rem. The petition filed by the Association was dismissed and High Court directed withdrawal of benefits released after 28.11.2000. High Court did not shift the employees who have given up their caste to open category. ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 27
14. To explain impact of latest judgment of Hon'ble Supreme Court in case of Chairman and Managing Director .vrs. Jagdish (supra), he has read out extensively said judgment with submission that the Hon'ble Supreme Court has found recourse to doctrine of prospective overruling and need to mens rea, by Full Bench in case of Arun Sonone .vrs. State of Maharashtra (supra), incorrect. He contends that therefore, judgment in case of A.P. Ramtekkar cannot be seen as judgment in rem at all and there cannot be any challenge to locus of petitioners.
15. To demonstrate that such petition is maintainable and petitioners possess locus, he has relied upon paragraph nos. 22 and 23 of judgment in case of Confederation of Ex-servicemen Associations and others .vrs. Union of India ((2006) 8 SCC 399). Judgment reported in case of Maval Taluka General Kamgar Sanghtana and another .vrs. Kirkee Cantonment Board and others (2003 (4) L.L.N. 578), is also relied upon to show locus. Judgment of Hon'ble Supreme Court in case of Booz Allen and Hamilton Inc. .vrs. SBI Home Finance Limited and others ((2011) 5 SCC 532), is also relied upon to explain the concept of judgment in rem and judgment in persona. He contends that Division Bench in A.P. Ramtekkar ignores or overlooks fraud practiced by respondents while securing entry in public employment.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 28
16. While arguing Writ Petition No. 6740/2016, he submits that petitioners are in open category. Comparative chart at Annexure-A, showing the dates of appointment, dates of promotion and designations, is pressed into service by him in an attempt to show that their reserved category candidates have been given benefit because of their status as reserved category persons and injustice has been done to open candidates, though there is specific direction to restore status of reserved category candidate as on 28.11.2000. Respondent No.7 has been given retrospective promotion because of orders of High Court dated 07.09.2015 in Writ Petition No. 640/2015. He points out that this direction of High Court is after adjudication in case of A.P. Ramtekkar. He has placed strong reliance upon paragraph nos. 7 to 9 of this order dated 07.09.2015. One of us (B.P. Dharmadhikari, J), is party to this order.
17. Office order dated 07.10.2016, is relied upon by him to urge that respondents treated as general category candidates have been thereafter unduly favoured while giving their placement. Our attention is drawn to case of respondent no.6 Shri S.G. Barapatre. It is pointed out that promotion to the post of AG-I is shown w.e.f. 31.01.2011, as per panel dated 23.12.2011. He states that said exercise has been carried out after this court extended time on 22.01.2016, while passing orders on Civil Application No. 2477/2015 in Writ Petition No. 640/2015. In paragraph no.9 of order dated 07.09.2015 in Writ ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 29 Petition No. 640/2015, absence of any vacancy in reserved category and promotion in open category has been taken note of. Reply filed by respondent nos. 2 to 5 in Writ Petition No. 6740/2016, reveals contention that all petitioners in Writ Petition Nos. 5198/2009 and 2126/2010, were to be restored to the position as on 28.11.2000. It is pointed out that subsequent promotions which such adjusted/ protected employees got, were only because of accelerated promotion. (We do not wish to look into this argument and contention because it is eclipsed by orders in Writ Petition No. 640/2015.) Shri Bhandarkar, learned counsel has submitted that employees thus protected only had advantage of protection in employment and, therefore, their names should have been maintained in separate book or cadre without requiring any "legally recruited employee" like petitioners to compete with them. He further adds that after judgment of Hon'ble Supreme Court in case of Chairman and Managing Director .vrs. Jagdish (supra), their retention in employment itself is contrary to law.
18. Shri Bhangde, learned Counsel opposing Writ Petition Nos. 1562/2004 and 268/2014 on behalf of the employer Reserve Bank of India has submitted that petitioner in Writ Petition No. 1562/2004 is an Association of Adivasi Employees. He has invited attention to assertions in paragraph no.12 and prayer clause (iii). Inviting attention to reply of Reserve Bank of India dated 27.01.2011, he submits that the caste claims were to be sent to the ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 30 Committee for verification, but, then because of judgment of High Court in case of A,P. Ramtekkar (Writ Petition No. 1512/2004), that course was no longer open. Present petitioners cannot seek review of that judgment in case of A.P. Ramtekkar and must go to the Hon'ble Supreme Court challenging it. Writ Petition No. 1562/2004 (present petition), was listed with all matters which are decided on 01.11.2012 along with case of A.P. Ramtekkar, hence, separate hearing of Writ Petition No. 1562/2004 is nothing but, rehearing of Writ Petition No. 1512/2004.
19. Association like petitioner no.1 can file Writ petition for injury suffered by the affected members only. Respondents who are absorbed in open category do not inflict such injury on members of petitioner no.1 and exercise leaves more seats available for such members.
20. In Writ Petition No. 258/2014, same Association with 4 more persons are party petitioners.
21. He submits that judgment in case of Akhil Bhartiya Soshit Karmachari Sangh (Railway) .vrs. Union of India and others (supra), contains only a finding by way of obiter and it is not binding. He also attempts to distinguish other two judgments relied upon by Shri Bhandarkar. He adds that there cannot be any public interest litigation in such or service matters. ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 31
22. It is urged that all petitioners in Writ Petition No. 258/2014, appear before absorbed employees/protected employees in seniority. Hence, no legal right is violated. All seniority lists were circulated and are also available on website, petitioners did not raise any objection to it.
23. Inviting attention to reply filed by Reserve Bank of India, particularly paragraph [vi] and [vii], he points out that 4 petitioners did not clear departmental examination for promotion, and hence, there is no question of any legal injury to them. He has taken us through judgment in case of A.P. Ramtekkar to demonstrate how the Division Bench has considered rival contentions. He points out that directions issued by the Division Bench were not questioned by the employer Reserve Bank of India. He also submits that there is no direction and mandate issued by this Court to recover benefits released in favour of protected employees after 28.11.2000.
24. Vide order dated 11.08.2015 in Writ Petition No.1562/2004, High Court has asked reworking of roaster. He also points out that order of Reserve Bank of India dated 19.07.2013, is impugned in Writ Petition No. 258/2014. By that order, 139 employees who gave undertaking, have been extended suitable treatment subject to orders of High Court in Writ Petition No.1562/2004.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 32
25. By placing reliance upon judgment of Hon'ble Supreme Court in case of State of Uttar Pradesh and others .vrs. Arvind Kumar Srivastava And others ((2015) 1 SCC 347), he justifies action of Reserve Bank of India in extending benefit directions in case of A.P. Ramtekkar to others who did not approach Court of law, but, gave up caste claim.
26. Bhushan Power and Steel Limited and others .vrs. Rajesh Verma and others ((2014) 5 SCC 551) particularly paragraph no.21 is relied relied upon by him to buttress the submission that merely because another judgment taking some other view has been delivered, the earlier judgment does not lose its binding effect on parties. Kalinga Mining Corporation .vrs. Union of India and others ((2013) 5 SCC 252), particularly paragraph nos. 42 and 44 are heavily relied upon to argue that a wrong decision also operates as res judicata and subsequent interpretation or explanation by a Court of law would only have prospective operation. A subsequent judgment cannot confer any benefit upon petitioners in present matters. He draws support from paragraph no.26 of judgment in case of Pradeep Kumar Maskara and others .vrs. State of West Bengal and others ((2015) 2 SCC 653). He contends that Reserve Bank of India had issued 25 show cause notices to its employees who were petitioners in Writ Petition No. 5198/2009. Those show cause notices were found invalid and protection has been extended to all those employees. The later exposition ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 33 of law by the Hon'ble Supreme Court in case of Jagdish (supra), overruling its earlier judgment in case of Kavita Solunke also does not in this situation open the cases which had attained finality and no recovery or punitive action has been permitted.
27. Shri Bhangde, learned Senior Counsel points out that in present petition, petitioners do not seek termination of employment of such employees who have been extended benefit of A.P. Ramtekkar. Their only prayer is to arrange for verification of their caste claim and to draw a seniority list in a particular manner.
28. Coming to the question of locus of petitioner nos. 2 to 4 in Writ Petition No. 258/2014, he invites attention to their pleadings in paragraph nos. 6 and 7, as also reply given by Reserve Bank of India to the same. He contends that grievance made by them is incorrect. According to him, if protection cannot be extended, then caste certificates of such employees need to be forwarded for verification. Other details in paragraph nos. 23 and 25 of the reply on behalf of respondent nos. 1 and 2 are also pressed into service in an attempt to demonstrate that no injury has been caused to these individuals.
29. Shri Naik, learned counsel for individual employees in Writ Petition No.258/2004, has strongly opposed the arguments of Shri Bhandarakar, learned ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 34 counsel. He submits that these individuals are not respondents in Writ Petition No.1562/2004. Inviting attention to objection of locus, he submits that in paragraph no.8, petitioners have not given details and no legal injiury suffered by petitioner no.2 Nilay Band has been pleaded. His entitlement to promotion is also brought on record. Judgment delivered in case of A.P. Ramtekkar, has been suppressed in the matter.
30. Reply on behalf of respondent nos. 5, 18, 20 to 28, 30, 78 and 80 to 140, particularly paragraph no.10 is pressed into service to show that respondents have been given post as sub-assistant and it is not a promotional post. It is time bound promotion given to respondent nos. 13 to 80, who complete 20 years of service. Verification of caste claim or any particular caste as such, is not therefore, prerequisite for it. Similarly, for Respondent nos. 81 to 140, it is claimed that they have been placed on post on which they were working on 28.11.2000, and have been promoted thereafter. Respondent nos. 5 to 12 were promoted long back and there is no express direction in case of A.P. Ramtekkar to withdraw the benefit. Averments in paragraph no.13 are pressed into service to urge that employer Reserve Bank of India had discretion and therefore, did not found it appropriate to withdraw the benefits given to respondent nos. 5 to 12. He further adds that 11 respondents i.e. 17, 21, 27, 35, 47, 51, 52, 56, 58, 72 and 94 have been promoted to officiate as Assistant Manager (Grade-A) on merit after passing departmental promotion ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 35 examinations in the year 2007. He submits that benefit of judgment in case of A.P. Ramtekkar, needed to be extended to all by a public employer like Reserve Bank of India because of mandate of Article 14 of the Constitution of India.
31. Shri Wahane, learned counsel for respondent nos. 19, 29 and 79 in Writ Petition No. 258/2014 has submitted that respondent nos. 19 and 29 have already retired, while respondent no.79 is due to retire shortly. He adopts arguments advanced by others to oppose the petitions.
32. Shri Samudra, learned counsel appearing on behalf of Food Corporation of India in Writ Petition No. 6740/2016, states that judgment in case of A.P. Ramtekkar, was assailed unsuccessfully before the Hon'ble Supreme Court. S.L.P. as also review application came to be dismissed, and hence Food Corporation of India was constrained to obey High Court and to give protection. Food Corporation of India also has restored position as on 28.11.2000 and recovered benefits released to protected employees after said date. He points out that as per order dated 18.11.2000, Shri Barapatre and Shri Sonkusare were promoted prior to 28.11.2000. He also points out that there was separate seniority list in view of the directions in case of A.P. Ramtekkar and invites attention to communications dated 21.01.2015 and 24.02.2015, issued by Food Corporation of India in this respect. One Shri Manohar Atmaram Parate (respondent no.8 in petition), questioned the ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 36 separate seniority list in Writ Petition No. 640/2015 and on 07.09.2015, High Court did not approve such separate seniority list. He invites attention to reply filed by respondent nos. 2 to 5 in this respect. Because of this, protected employees were shifted to general category and their promotion were fixed notionally w.e.f. from the date of their promotion of their respective juniors in new seniority list. New seniority list accordingly has been displayed as on 31.12.2015 and the same has not been questioned. He points out that as is apparent from records of respondents, protected employees were senior to petitioners even before 28.11.2000.
33. He points out that though order of that promotion dated 07.10.2016 has been assailed, all promotees therein are not party respondents. In Writ Petition only challenge is to promotion of respondents in open category, there is no challenge to protection as such. After placing reliance on judgment of Hon'ble Supreme Court in case of Jagdish (supra), effort now is to throw these employees out.
34. Shri Shareef, learned counsel for respondent no.6 in Writ Petition No. 6740/2016 submits that said respondent was petitioner no.24 in Writ Petition No. 2126/2010, decided on 01.11.2012 along with A.P. Ramtekkar.
35. With leave of Court, Shri Bhangde, learned Senior Counsel has ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 37 addressed briefly on judgment of Full Bench of this High Court in case of Arun Vishwanath Sonone .vrs. State of Maharashtra and ors (supra), to explain three categories in which benefit of a Court verdict cannot be extended to others. He submits that respondents before this Court were not fence sitters.
36. Shri Lakhe, learned counsel for respondent no.8 in Writ Petition No. 6740/2016, submits that respondent no.8 was promoted on 21.04.2016, and those orders have not been challenged. He further points out from charts on record the position prevailing before 28.11.2000. He points out that on 09.11.2009, respondent no.8 has been promoted as Scheduled Tribe candidate, and while explaining the position, employer Food Corporation of India has on 09.11.2000 clarified that this promotion is on merit and not against reservation. Our attention is also drawn to order dated 21.04.2016, which in paragraph no.5 considers eligibility of respondent no.8 as unreserved open category candidate.
37. In brief reply, Shri Bhandarkar, has invited our attention to judgment dated 01.02.2018 in Writ Petition No. 6247/2015. He claims that government resolution providing protection is already set aside.
38. We therefore find it convenient to refer to the latest judgment of Hon'ble Apex Court in Food Corporation of India v. Jagdish Balaram Bahira,(supra),:
In paragraph 55, therein the Hon'ble Court has observed that the intent of a ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 38 candidate may be of relevance only if there is a prosecution for a criminal offence. It holds that " However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent." The Hon'ble Apex Court holds that the legislature legitimately assumed that a person seeking a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. "If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be canceled on the ground that it has been obtained falsely.
The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled."
39. In paragraph 56 the Hon'ble Court points out that service under the Union and the States, or for that matter under the instrumentality of the State subserves a public purpose. Available resources and the opportunities provided in the form of public employment are short of demands and needs. The selection of ineligible persons has a deleterious effect on good governance are explained by it as -- "Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 39 upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the Constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilized to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act 23 of 2001, the power under Article 142 should not be exercised to defeat legislative prescription." -----........------------. "Several decisions of two-Judge Benches noticed earlier, failed to take note of Maharashtra Act 23 of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise noted the statute but that the area was unregulated by statute. Shalini misconstrued it."
We have emphasized the portion in bold letters above to highlight the obligation of the High Court in its extraordinary jurisdiction. ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 40
40. Food Corporation of India v. Jagdish Balaram Bahira,(supra), at page 725 also considers Full Bench judgment in case of Arun Sonone vs State of Maharashtra (supra). The Full Bench judgment holding that (i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from employment or cancellation of appointments that have become final prior to the decision in Milind on 28-11-2000; (ii) the benefit of protection in service upon invalidation of the caste claim is available not only to persons belonging to Koshti and Halba Koshti but is also available to persons belonging to the special backward category on the same terms and (iii) the decision in Milind was in the nature of prospective overruling of the law which was laid down by the Bombay High Court is declared "clearly unsustainable". It also declares that-- "The jurisdiction under Article 142 is clearly not available to the High Court in the exercise of its jurisdiction under Article 226. The High Court erred in arrogating that jurisdiction to itself."
41. Observations of Hon'ble Apex Court in this Judgment in para 65 on circulars and policies extending the protection to dishonest employees show that such "administrative circulars and government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. The services of an individual whose caste claim is ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 41 invalidated cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that the Government is bound by its own circulars is well settled but it cannot apply in a situation such as the present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment." In para 66 the Hon'ble Supreme Court observes that it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring probity. The Hon'ble Apex Court emphasizes that that is the only manner in which the sanctity of the system can be preserved.
"The legal system cannot be seen as an avenue to support those who make untrue claims to belong to a caste or tribe or socially and educationally backward class." These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to them. "The credibility not merely of the legal system but also of the judicial process will be eroded if such claims are protected in ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 42 exercise of the constitutional power conferred by Article 142 despite the State law."
42. Following observations in this judgment of Hon'ble Apex Court are also important --
"67. This aspect has been considered in a recent judgment rendered by one of us in Nidhi Kaim v. State of M.P., wherein, speaking for a Bench of three Judges, in a case of systemic fraud in relation to medical admissions in the State of Madhya Pradesh. It was observed as follows: (SCC p. 64, para 92).
"92. ... we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of "the unfair". It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We are of ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 43 the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course.
99. Besides the consideration recorded by us in the foregoing paragraphs, we may confess, that we felt persuaded for taking the view that we have, for a very important reason -- national character. There is a saying--when wealth is lost, nothing is lost; when health is lost, something is lost; but when character is lost, everything is lost."
43. In para 69.3, the decisions of Supreme Court in R. Vishwanatha Pillai and in Dattatray of by Benches of three Judges laying down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution--on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification renders such appointment or the admission void or non est, are quoted with approval. Thereafter, the Hon'ble Apex Court applies these principles to the respective challenges in appeals before it and in para 78 it observes---
"78. The respondent has no right to claim protection of her services. The respondent has misused the process of law by filing successive writ petitions to pre-empt an adjudication by the ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 44 Scrutiny Committee and then confining the claim only to the protection of her services.
44. Cases of the respondents or their employers before us and defence of protection is clearly eclipsed by the law and principles settled by the Hon'ble Apex Court in Food Corporation of India v. Jagdish Balaram Bahira, (supra). They have avoided scrutiny by the Scrutiny Committee as it would have revealed truth and also succeeded in protecting their jobs secured wrongfully.
45. Open category Petitioners legally recruited can not be placed or compared or asked to compete with those who have no right to post. Restoring them to 28.11.2000 position is not countenanced by the verdict of Hon'ble Apex Court in Jagdish (supra). If they are promoted or treated as accepted as promoted after 28.11.2000 as they succeed in departmental promotion examinations in the year 2007 or some other year, their success itself prejudices the petitioners. These dishonest protected ones can not steel the benefit of non-existent caste to enter public employment and to accelerate on open category posts meant for present petitioners. Such wrongdoers can not be allowed to retain benefit secured even prior to 28.11.2000. The Petitioners are assailing and entitled to challenge the retention of benefits by protected ones prior to 28.11.2000. Hon'ble Apex Court declares their entry and this treatment void. Petitioners before us, not parties to that adjudication in A.P. Ramtekkar definitely can challenge it. They can not be silenced by invoking principles like "judgment in ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 45 rem" or "res-judicata" or "lack of locus".
46. Petitioners had no cause of action if the protected respondents remain in "reserved category" and do not come in open category. The moment they switch to open category, they either become senior or junior of the Petitioners and start competing with them in process of bettering their prospects. Petitioners are adversely affected at that stage and hence, a cause of action accrues to them. Hence, objection that they do not have locus to approach this Court or based on "res-judicata" need to be rejected.
47. In Vaish Aggarwal Panchayat vs. Inder Kumar and Ors. (25.08.2015 - SC) : MANU/SC/0927/2015, law laid down by the Hon'ble Apex Court shows that the High Court of Punjab and Haryana was influenced by the finding recorded by the trial court ignoring the fact that the conclusion has been arrived at by taking into consideration the averments made in the plaint and the assertions put forth in the written statement. The cause of action for filing the suit was different. The grounds urged in the suit were also quite different. On a perusal of the plaint alone it cannot be said that the suit is barred by the principle of res judicata. The allegations in plaint in the instant case are completely different. There is an asseveration of fraud and collusion; there is an assertion that in the earlier suit a decree was passed because of fraud and collusion. Thus, the Hon'ble Apex Court found that High Court had fallen into ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 46 error by expressing the view that the plea of res judicata was obvious from the plaint. In the factual matrix, there should have been a trial with regard to all the issues framed. Though these observations are at Order VII Rule 11 of Civil Procedure Code stage, the impact of a different cause of action can be seen.
48. In Satyendra Kumar and Ors. vs. Raj Nath Dubey and Ors. (06.05.2016 - SC) : MANU/SC/0529/2016, Hon'ble Apex Court lays down (i) in para 12 that the reasoning and correctness of the findings given by the High Court that previous proceedings would operate as res judicata only in respect of issues of facts and not on issues of pure questions of law when the subsequent suit or proceeding is based upon a different cause of action and in respect of different property though between the same parties. The Hon'ble Apex Court was in agreement with the views of the High Court and hence did not deem it necessary to go into further details of the legal concept of res judicata and estoppel. Once a judgment in a former suit or proceeding acquires finality, it binds the parties totally and completely on all issues relating to the subject matter of the suit or proceeding. This flows from Section 11 of the Code of Civil Procedure which in turn is based upon ancient doctrines embodied in every civilized system of jurisprudence with almost universal application that an earlier adjudication between the same parties is conclusive in respect of the same subject matter. (ii) In paragraph 13 Hon'ble Court holds that the distinction drawn by the High Court in the impugned judgment that an ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 47 erroneous determination of a pure question of law in a previous judgment would not operate as res judicata in the subsequent proceeding for different property, though between the same parties, was clearly in accord with Section 11 of the Code of Civil Procedure. When the cause of action as well as the subject matter i.e., the property in issue in the subsequent suit are entirely different, res judicata is not attracted and the competent Court is therefore not debarred from trying the subsequent suit which may arise between the same parties in respect of other properties and upon a different cause of action. Hon'ble Apex Court in paragraph 14 explains that the (iii) Principle of estoppel operates against the party and not the Court and hence nothing comes in the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted. The issues of facts once finally determined will however, stare at the parties and bind them on account of earlier judgments or for any other good reason where equitable principles of estoppel are attracted. This proposition of law applies here with more vigour as Petitioners before us were not parties to A.P. Ramtekkar and the cause of action in their favour springs after judgment delivered therein.
49. The employer Reserve Bank Of India has placed reliance upon State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347 to justify its action of extending the protection to all employees who gave up their caste claim. In paragraph 22.1 to 22.3, the Hon'ble Apex Court points out the normal rule that ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 48 when a particular set of employees is given relief by the court, that benefit needs to be extended to others identically situated. Not doing so is discrimination and violative of Article 14 of the Constitution of India. This principle applies in service matters more emphatically as the service jurisprudence evolved from time to time postulates that all similarly situated persons should be treated similarly. However, exception to it are fence-sitters and employees guilty of larches, delays, and/or the acquiescence. They are not entitled to benefit of this rule. This exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either latches and delays or acquiescence.
50. The Division Bench of this Court did not in matter of A.P. Ramtekkar lay down any policy decision or principle in "rem". The field was occupied by a ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 49 legislative mandate and direction in derogation thereof is found void by the Hon'ble Apex Court in case of Chairman and Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (supra). We have also found that open category employees like present petitioners to whose detriment the policy or law in A.P. Ramtekkar was to operate, were not parties to that adjudication. Moreover, such open category Petitioners had no cause of action at that juncture.
51. Respondents also cite Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551, to urge that change in Court's view does not affect the law settled in A.P. Ramtekkar and consequential exercise. Paragraph 21 of the Hon'ble Apex Court judgment reveals that there existed a judgment, inter partes, which had become final. Even when the civil appeal was being heard, certain other parties claiming their interest in very lands had moved intervention applications which were dismissed. At that time also it was mentioned that there were 195 applicants. However, notwithstanding the same, the Hon'ble Apex Court issued firm directions to the State Government to recommend the case of the petitioners for mining lease in both the areas. When such categorical and unambiguous directions attained finality, merely because another judgment was delivered by the Hon'ble Apex Court in Sandur Manganese case, it cannot be a ground to undo such directions contained in the judgment dated 14-3-2012. The Hon'ble Apex Court clarifies that law laid down in Sandur Manganese4 may ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 50 be applied and followed by the State Government in respect of other applications still pending. However, it cannot be pressed into service qua the petitioner whose rights have been crystallized by the judgment rendered in its favour.
52. It is obvious that Petitioner before us have no cause to intervene in A.P. Ramtekkar and their cause has arisen after that judgment. We can not hold that this Court took away the rights of open category employees without even herein them or behind their back. In fact, none of the respondents have gone to the extent of urging such "taking away". Court of law can not take away or affect the rights of parties not before it and if it does so, the affected party like present Petitioners can very well seek review of such judgment. Had respective employers or their benefited employees raised any such contention, they could not have assailed the locus of the Petitioners before us but at the most forced open category Petitioners to apply for review of A.P. Ramtekkar(supra).
53. In Kalinga Mining Corpn. v. Union of India, (2013) 5 SCC 252, the Hon'ble Supreme Court in para 42 points out that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata'. In para 44, the Hon'ble ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 51 Court observes that given the history of litigation between the parties, which commenced in 1950s, the High Court was justified in finally giving a quietus to the same. The subsequent interpretation of Rule 25-A by this Court, that it would have only prospective operation, in Saligram case, would not have the effect of reopening the matter which was concluded between the parties. If the parties are allowed to re-agitate issues which have been decided by a court of competent jurisdiction on a subsequent change in the law then all earlier litigation relevant thereto would always remain in a state of flux. In such circumstances, every time either a statute or a provision thereof is declared ultra vires, it would have the result of reopening of the decided matters within the period of limitation following the date of such decision. These observations have no relevance here as the Petitioners were not parties to and had no cause of action when A.P. Ramtekkar (supra) was decided. For the same reasons We need not deal at length with the judgment of the Hon'ble Apex Court in Pradeep Kumar Maskara and Others vs. State of West Bengal and Others
--(2015) 2 SCC 653, which in para 26 holds that a judgment interpartes can not be overlooked by a Tribunal because a view to the contrary is later taken in other judgment. Reversal of a view on law by a later judgment of a superior court or same court in other matter, is not a ground available for review.
54. The Respondents also urge that public interest litigation is not maintainable in service matters and rely upon Bholanath Mukherjee and ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 52 Others vs. Ramakrishna Mission Vivekananda Centenary College and Others ---(2011) 5 SCC 464. However, here we are looking into grievance of open category employees against those who force their entry in open category without merit and succeed in retaining benefits to which they are constitutionally not entitled. When there can not be any PIL in such a matter, it is apparent that neither they nor their employer can argue that A.P. Ramtekkar lays down any law in Rem and present Petitioners lack locus to assail it. We may here point out that the Division Bench of this Court in Writ Petition No. 6247 of 2015 - Organization for Rights of Tribals v, State Of Maharashtra and its two other departments, has on 1.2.2018 quashed and set aside the G.R. Dated 21.10.2015 which protected employments between 15.6.1995 to 17.10.2001. Adiwasi Sangharsha Samiti, Nagpur and Koli Mahasangha Trust, Navi Mumbai appear as intervenors in it. However, their exact role is not clear. The Division Bench has followed the law in Chairman and Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (supra).
55. In the light of this discussion, it is not necessary to labour more on the aspect of res-judicata and to refer to observations of Hon'ble Apex Court in paragraph Nos. 38, 39, 40 and 48 in Dr. Subramanian Swamy v. State of Tamil Nadu and others --- (2014) 5 SCC 75 and again distinguish it.
56. AIR 1981 SC 298 -- Akhil Bhartiya Soshit Karmachari Sangha ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 53 (Railway) vs. Union of India and others (para 63) is relied upon to explain how the locus in such matters of general public importance needs to be liberally understood. Same objection to tenability came to be rejected in paragraph Nos. 22 and 23 in Confederation of Ex-Servicemen Assns. v. Union of India, (2006) 8 SCC 399, by the Hon'ble Apex Court. (2003)4 LLN 578-- Maval Taluka Genaral Kamgar Sanghatana and another vs. Kirkee Cantonment Board and others is the Division Bench judgment of this Court wherein in public interest the order revoking suspension of respondent no. 4 was set aside. Respondent 4 was an accused in anti corruption matter charged with accepting Rs. 10,000/. In para 16, this Court in larger public interest found it not proper to dismiss the petition for want of locus as act of "state" under Art. 12 was assailed as illegal.
57. Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, is the judgment which points out the difference in judgment in Rem and in personam. The Hon'ble Apex Court in paragraph 37 explains that a right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject-matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 54 interest in that property. Correspondingly, a judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide Black's Law Dictionary.) These observations of the Hon'ble Court therefore show that a right existing in a party is recognized and declared so that it operates against all concerned with it. In A.P. Ramtekkar's (supra) matter, the petitioners therein (who are respondents before us) did never have any such right and as per law of land, their initial joining or entry in public employment is "void". It was/is fraud on the Constitution and Public. No Court of law can lend legitimacy to it. Respondents before us have and had no right to post and they in A.P. Ramtekkar's (supra) were therefore not getting any such right recognized. Concept of judgment in rem has no application in their cases. When the doctrine of res-judicata does not come into play, it is obvious that judgment of the Division Bench of this Court in A.P. Ramtekkar's (supra) is not binding on anybody not party to it. Writ Petition No. 1512/2004 where the three associations were also the co-petitioners, but cognizance of petition was not taken at their instance observing that employee in position to agitate his individual claim must do so, factually also A.P. Ramtekkar's (supra) can not be seen as decided in "rem".
58. Moreover, after the judgment of the Hon'ble Apex Court dated ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 55 6/7/2017 in Chairman and Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (supra), it follows that the public employers like Reserve Bank Of India and Food Corporation Of India also can not after said date, continue to comply with or act as per A.P. Ramtekkar's (supra). They can not directly or indirectly, be party to a fraud or wrong and can not permit public revenue to be lost by making it over to undeserving employees. Continuation of such employees is against public interest and not at all only a service dispute. Petitioners before us who are law abiding citizens and occupy the post on their merit, can always point out wrongful entry into service by his co-worker.
59. Food Corporation of India v. Jagdish Balaram Bahira, (supra) in paragraph 69.6 observes--
"69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18-10-2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;"
We have reproduced following portion already but are constrained to quote it again in this context. In paragraph 55, during discussion, Hon'ble Court observes--
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04 56 "The burden of proof that he or she belongs to such a caste, tribe or class lies with the claimant. The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved."
60. Thus, the Respondents before us are the persons who have consciously avoided "verification" and therefore there is no finality to their caste certificate and caste claim. There caste certificate therefore is deemed to be canceled and benefits released to them ie undue treatment as reserved employees from day one are liable to be withdrawn as fraudulent. Grant of employment to them being itself found to be a fraud, it can not be perpetrated or allowed to be accomplished by permitting them to continue even as open category employees. Treating them or counting them in open category may itself seen as adding or furthering their dishonest intention entertained on the date of staking claim as reserved candidate. Portion in bold letters emphasized supra from paragraph 56 of Food Corporation of India v. Jagdish Balaram Bahira,(supra) militates with the defence of the Respondents before us. It is definitely a fraud on the Nation, the Constitution and also on open category candidates whose prospects ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 57 of getting a post are diminished. Other open employees like Petitioners before us therefore can make a grievance and seek their ouster. Their grievance is not a simple cause of action arising in an ordinary service matter. They are pointing out to this Court a design by which wrongdoers are cheating and continue to enjoy the fruits of their wrong. Objections to locus of open category Petitioners or to tenability of present writ petitions are therefore misconceived. This elaboration is necessary to show manifest fallacy in objections like Petitioners are not prejudiced because of promotion given to protected employees who become senior to Petitioners because of date 28.11.2000 assigned to them, that the protected employees performed better in departmental examinations or then Petitioners failed in it and hence Petitioners are not aggrieved. Very fact that there can not be in law, an occasion to compare such "protected" with the Petitioners is sufficient to put at rest all these frivolous contentions. If posts, promotional or otherwise, are not filled as Petitioners do not qualify, the vacancies need to be subjected to fresh process, thereby bettering the chances of open Petitioners. In this view of matter, it is not necessary to look into individual details of the promotions etc. of the respective rival claimants. The contention or justification of the employer Food Corporation of India that it initially did place such protected employees in a distinct cadre and it is because of the directions issued by this Court that they were amalgamated in the "open" cadre and treated accordingly also therefore does not hold any water in these petitions. ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::
Judgment wp1562.04
58
61. Even if it is accepted that Writ Petition No. 1562/2004 (present
petition), ought to have been decided on 01.11.2012 with other matters i.e., along with case of A.P. Ramtekkar, fact that it could not be so decided is apparent. After the subsequent judgment of Hon'ble Apex Court in case of Food Corporation of India v. Jagdish Balaram Bahira, supra, hearing before us can not be seen as "rehearing" of A.P. Ramtekkar (supra). Order dated 11.8.2015 therein or dated 7.8.2015 in Writ Petition No. 640 of 2015 do not advance the cause of protected respondents here and can not prejudice the rights of present Petitioners. Definitely, the Petitioners are entitled to claim that their respective Employers have to conduct themselves as per mandate contained in Food Corporation of India v. Jagdish Balaram Bahira,(supra). They can also pray for avoiding their comparison or competition with reserved category protected employees whose caste certificates are either invalidated by the Scrutiny Committee or then, who have avoided such verification.
62. We, therefore, quash and set aside the order of promotion dated 7.10.2016 in Writ Petition No.6740/2016 issued by Respondent No.5 Food Corporation Of India therein.
63. We direct Respondents 1 to 3 in Writ Petition No. 1562 of 2004 to initiate necessary steps within next two months to discontinue and terminate the "void" recruitment of all those on its roll who have given up their castes and ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 59 continuing in service on the basis of "protection".
64. We also direct Respondents 1 to 3 in Writ Petition No. 258 of 2014 to initiate necessary steps within next two months to discontinue and terminate the "void" recruitment of Respondents no. 5 to 140 on its roll who have given up their castes and continuing in service on the basis of "protection".
65. The Food Corporation of India or the Reserve Bank Of India shall forthwith discontinue and not release any payments or dues to the Respondent employees before this Court who have given up their castes and were/are still continued by them.
66. The Food Corporation Of India or the Reserve Bank Of India shall also initiate necessary steps within next two months to recover payments or dues released, from to the Respondent employees before this Court who have given up caste claim.
67. Rule made absolute accordingly in all these Writ Petitions with no order as to costs.
68. In Contempt Petition No. 236/2016, Notice before admission has been issued on 26.07.2016. In Contempt Petition No.34/2014, Notice has been ::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 ::: Judgment wp1562.04 60 issued on 28.02.2014. On 18.12.2017, respective counsel for petitioners and respondents pointed out that Contempt Petitions and Writ Petitions were to be heard finally.
69. In the light of developments in the field of law noted supra, namely judgment in case of Arun Vishwanath Sonone .vrs. State of Maharashtra and ors (supra) and its overruling by the Hon'ble Supreme Court in case of Chairman and Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (supra ), we do not see any deliberate disobedience by respondents in the matter. They have gone by the Division Bench judgment in case of A.P.Ramtekkar (supra). Hence, we dismiss both the Contempt Petitions. No cost.
JUDGE JUDGE
Rgd.
::: Uploaded on - 17/04/2018 ::: Downloaded on - 18/04/2018 01:27:09 :::