Bombay High Court
Jagan Ganpatrao Taklikar vs Union Of India on 30 November, 2012
Bench: B.R.Gavai, R. K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5029/2010
Jagan Ganpatrao Taklikar,
aged about 58 years, Occ. Service,
R/o. Juni Mangalwari, Mattipura
Road, Near Nageshwari Primary
School, Nagpur. PETITIONER
ig ...VERSUS...
1. Union of India,
through its Secretary,
Ministry of Labour and
Employment, Shramshakti
Bhawan, New Delhi.
2. The Chairman,
Central Board of Workers
Education, Mumbai.
3. The Director,
Central Board of Workers
Education, North Ambazari Road,
Nagpur. RESPONDENTS
--------------------------------------------------------------------------------------------------
Shri S.R.Narnaware, Advocate, for petitioner
Dr. R.S.Sundaram, Advocate, for Respondents
--------------------------------------------------------------------------------------------------
CORAM: B.R.GAVAI, AND
R. K. DESHPANDE, JJ.
th
DATE : 30 NOVEMBER, 2012
::: Downloaded on - 09/06/2013 19:27:09 :::
2
ORAL JUDGMENT (Per Gavai, J.)
1] Rule, made returnable forthwith. By consent, taken up the matter for hearing.
2] The petitioner challenges the order passed by the learned Central Administrative Tribunal in O.A. No. 2147/2005, thereby dismissing the original application filed by the present petitioner challenging the order of termination dated 12.08.2005. The facts in brief giving rise to the present petition are as under.
3] The petitioner came to be appointed as Lower Division Clerk on 18th December, 1972, on the basis of his claim of belonging to Halba - Scheduled Tribe. The caste claim of the petitioner came to be invalidated on 3rd March, 2000. Being aggrieved by this, the petitioner filed W.P. No. 1737/2000. The said petition was disposed of on 13.06.2001, thereby given liberty to the petitioner to make a ::: Downloaded on - 09/06/2013 19:27:09 ::: 3 representation to his employer. However, it appears that his representation was rejected. In the meantime, the departmental proceedings came to be initiated against the petitioner on the ground of suppression of fact and as finding guilty, his services were terminated by order dated 12th August, 2005. The petitioner thereafter filed aforesaid Original Application, which has been dismissed by the impugned order dated 28th April, 2010. Hence, the present petition.
4] Dr. Sundaram, the learned counsel appearing on behalf of the respondent-employer submits that the present case would not cover by the judgment of the Apex Court in case of Kavita Solunke vrs. State of Maharashtra reported in 2012 (5) Mh.L.J. 921 inasmuch as the petitioner has been found guilty in the departmental proceeding of suppression of material facts. The learned counsel submits that the original application has been rejected by a well reasoned order which requires no interference.
::: Downloaded on - 09/06/2013 19:27:09 ::: 45] It could be seen that the departmental proceedings were initiated against the petitioner only on the ground that his claim of belonging to Scheduled Tribe was fake and that he has suppressed the fact that he not belonging to Schedule Tribe. Hence, we are of the opinion that the order of the learned Central Administrative Tribunal also cannot be faulted with.
6] After the judgment of the Constitution Bench of the Apex Court in case of State of Maharashtra vrs. Milind Katware and others reported in 2001 (1) Mh.L.J. 1, various benches of the High Court have taken conflicting view as to whether the employee is entitled to protection of his services or not. However, the Apex Court in case of Kavita Solunke vrs. State of Maharashtra after considering all the rival judgments and peculiar facts pertaining to Halba Kosti in the State of Maharashtra, has taken a view that all such appointments which are become final prior to 28.11.2000, ::: Downloaded on - 09/06/2013 19:27:09 ::: 5 are entitled to be protected. Not only this, but on the basis of the judgment of the Apex Court, the Office Memorandum has also been issued by the Union of India on 10th August, 2010, thereby protecting the services of the employees who have been held to be belonging to Halba Kosti on or before 28th November, 2000. The only rider in the Office Memorandum is that such an employee will not be entitled to any other benefit of reservation after 28th November, 2000.
It is thus clear that when the judgment was delivered by the C.A.T., the learned Administrative Tribunal did not have the benefit of going through the judgment in case of Kavita Solunke vrs. State of Maharashtra and office memorandum, dated 10th August, 2010, as the said judgment and office memorandum had come after the subsequent period of time.
7] We are of the considered view that since the petitioner's appointment is prior to 28th November, 2000 and the only ground of rejection of caste claim is that pre ::: Downloaded on - 09/06/2013 19:27:09 ::: 6 independence document show either the caste claim Kosti or Halba Kosti, the petitioner is entitled to protection of service.
8] It is informed that the petitioner on superannuation would have stood retired on April, 2012. As such, there is no question of reinstatement of the petitioner.
In that view of the matter, we are inclined to allow the petition in the following terms.
[i] The judgment and order passed by the learned Central Administrative Tribunal and the termination order dated 12th August, 2005 are quashed and set aside.
[ii] Since the order of termination is quashed and set aside, the petitioner would stand notionally reinstated on the said date and would be entitled to all increments till the date of his superannuation i.e. April 2012. Needless to say that petitioner would also be entitled to continuity and all consequential benefits.
::: Downloaded on - 09/06/2013 19:27:09 ::: 7However, the petitioner would not be entitled for backwages during the period when he was out of employment.
[iii] However, the respondent shall determine all the pensionery and retiral benefits as would be available to the petitioner on the basis of aforesaid order from 1st January, 2013. The regular pension be paid to the petitioner from 1st January, 2013 and all other benefits be paid to him within a period of three months from today.
9] In view of above, rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Rvjalit
::: Downloaded on - 09/06/2013 19:27:09 :::