Allowed

Chintaman Shivram Sonwane v. State of Maharahstra and Others

Bombay HC19 Jun 2014WP/1873/1999

Case brief

AI extract

What is this about?

The High Court set aside an order terminating a petitioner's service after invalidating his Scheduled Tribe status. Quashing the termination, the court directed reinstatement with continuity of service but barred future reserved category benefits, citing precedents on procedural flaws in caste verification.

What did the court decide?

Termination order quashed; Petitioner reinstated with continuity of service within six weeks; No back-wages in default; No future reserved category benefits.

Chintaman Shivram Sonwane Vs State of Maharahstra and… — Service and Employment | Bombay HC (2014)

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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION

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WRIT PETITION NO. 1873 OF 1999

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Chintaman s/o Shivram Sonwane, age : 39 years, occu : Service, r/o : Chorgaon, Tq. : Erandol, Dist. : Jalgaon. ... PETITIONER

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V E R S U S

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1.	The State of Maharashtra, ( Copy to be served on the Govt. Pleader, High Court of Judicature of Bombay, Bench at Aurangabad).
2.	The Committee for Scrutiny and Verification of Tribe Claims, Pune.
3.	The Collector, Ratnagiri.
4. Mr. Mr. Mr.	The Sub-Divisional Officer, Chiplun Sub-Division, Chiplun, Dist. : Ratnagiri. ...RESPONDENTS ----- S.R.Barlinge, Advocate for the Petitioner. S.K.Tambe, AGP for Respondent Nos.1, 3 and 4. P.S.Patil, Advocate for Respondent No.2 -----

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CORAM : R. M. BORDE and V. L. ACHLIYA, JJ. DATE : 19^th June, 2014.

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ORAL JUDGMENT:

1 The Petitioner claims to belong to Mahadeo Koli Scheduled

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Tribe and has secured a caste certificate to that effect from Executive Magistrate, Shahapur on 26^th October, 1983. The Petitioner was appointed as a Talathi as against a vacancy reserved for the Scheduled Tribe category candidates by an order dated 20^th November, 1989 issued by the Sub-Divisional Officer, Chiplun. After appointment of the Petitioner as a Talathi, a caste certificate produced by him issued by the Executive Magistrate came to be referred to the Scrutiny Committee by the appointing authority i.e. the Collector on 19^th August, 1991. The Scrutiny Committee initially directed invalidation of the caste certificate issued in favour of the Petitioner by order dated 3^rd February, 1994. This order was subject matter of challenge before this Court in Writ Petition No.3342 of 1996 and this Court while dealing with the petition, allowed the same and remitted the matter mack to the newly constituted Scrutiny Committee. The Scrutiny Committee during the fresh inquiry, extended opportunity of hearing to the Petitioner and after observing procedure prescribed, the Scrutiny Committee by judgment dated 18^th February, 1998 directed invalidation of the caste certificate issued in favour of the

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Petitioner. The Petitioner submits that on receipt of the order of

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invalidation issued by the Scrutiny Committee, the appointing authority by order dated 20^th March, 1999 directed termination of the services of the Petitioner. Although the Petitioner has raised a challenge to the order of invalidation of the caste certificate issued by the Scrutiny Committee on 18^th February, 1998, the Petitioner during the course of hearing, has not seriously questioned the correctness of the judgment, however, has claimed service protection in view of the Government Resolution dated 15^th June, 1995. The Scrutiny Committee also while issuing order of invalidation of caste certificate has observed that the Petitioner shall be entitled to claim service protection in view of the Government Policy dated 15^th June, 1995.

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2 It is the contention of the Petitioner that Respondent – SubDivisional Officer overlooking the Policy of the State Government, has directed termination of the services of the Petitioner and the said order is liable to be quashed and set aside. Although it is recorded in the order of invalidation that, on consideration of old documentary record, which records entry of caste of brother and father in school register as Suryawanshi Koli and Hindu Koli, the recent record produced by Petitioner, which supports his claim appears to be manipulated, we do not find any evidence to substantiate their finding recorded in the order.

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There is neither any allegation nor any evidence in respect of fabrication of documents. It can only be concluded that the Petitioner has failed to substantiate his claim that he belongs to the Scheduled Tribe category. In our opinion, the order passed by the Sub-Divisional Officer on 20^th March, 1999 directing termination of the services of the Petitioner and refusing to extend the benefits of the Government Resolution dated 15^th June, 1995 in respect of extending service protection to the reserved category employees, is bad in law and is liable to be set aside.

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3 In this context, it would be advantageous to make a reference to the recent judgment of the Supreme Court in the case of Shalini Vs. New English High Sch. Assn. & Ors , reported in, [ 2014 (1) Supreme 187 ] . In paragraph No.5 of this judgment, the Supreme Court has observed thus:

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“5. It is evident that there is a plethora of precedents on this aspect of the law, and perhaps for this reason Counsel for the parties were remiss in drawing our attention in the present proceedings to the detailed judgment in Kavita Solunke v. State of Maharashtra (2012) 8 SCC 430, in which one of us, Thakur J, had analysed as many as eleven precedents including those discussed above. After reviewing all the judgments it was held, in the facts and

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circumstances of that case, that since that party had not intentionally or with dishonest intent fabricated particulars of a scheduled tribe with a view to obtain an undeserved benefit in the matter of appointment, she was entitled to protection against ouster from service, but no other benefit. In view of the comprehensive yet concise consideration of case law in Solunke, any further analysis would make the present determination avoidably prolix, and therefore our endeavour will be to cull out the principles which would be relevant for deciding suchlike conundrums. These are - (a) If any person has fraudulently claimed to belong to a Scheduled Caste or Scheduled Tribe and has thereby obtained employment, he would be disentitled from continuing in employment. The rigour of this conclusion has been diluted only in instances where the Court is confronted with the case of students who have already completed their studies or are on the verge of doing so, towards whom sympathy is understandably extended; (b) Where there is some confusion concerning the eligibility to the benefits flowing from Scheduled Caste or Scheduled Tribe status, such as issuance of relevant certificates to persons claiming to be ‘Koshtis’ or ‘Halba Koshtis’ under the broadband of ‘Halbas’, protection of employment will be available with the rider that these persons will thereafter be adjusted in the general category thereby rendering them ineligible to further benefits in the category of Scheduled Caste or

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Scheduled Tribe as the case may be; (c) this benefit accrues from the decision of this Court inter alia in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 which was rendered under Article 142 of the Constitution of India. Realising the likely confusion in the minds of even honest persons the Resolutions/Legislation passed by the State Governments should spare some succour to this section of persons. This can be best illustrated by the fact that it was in Milind that the Constitution Bench clarified that ‘Koshtis’ or ‘Halba-Koshtis’ were not entitled to claim benefits as Scheduled Tribes and it was the ‘Halbas’ alone who were so entitled. A perusal of the judgment in 'Vilas' by Sirpurkar J, as well as 'Solunke' makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature; (d) Where a Resolution or Legislation exists, its raison d’etre is that protection is justified in presenti (embargo on removal from service or from reversion) but not in futuro (embargo on promotions in the category of Scheduled Caste or Scheduled Tribe).

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4 As has been recorded above, in the instant matter, there is

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no allegations that the Petitioner has applied any fraudulent means in claiming employment benefit. As such, he is entitled to claim benefits

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under the Government Policy.

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5 Useful reference can also be made to the case of Dattu Namdeo Thakur Vs. State of Maharashtra , reported in, [ 2012 (3) Mh.L.J. (S.C.) 179 ] as well as A.P. Ramtekkar and others Vs. Union of India and others , reported in, [ 2013 (2) Mh.L.J. 419 ] for extending service protection. In the case of A.P. Ramtekkar and others (supra) while dealing with the identical issue has observed in paragraph Nos.11, 12 and 13 as follows:

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"11. The Hon’ble Apex Court in case of Kavita Solunke (Supra), relying upon the Constitution Bench judgment in case of State of Maharashtra vs. Milind and others, reported in 2001(1) Mh.L.J. 1,has taken a view that on account of peculiar circumstances, there was a confusion as to whether Halba Koshtis are entitled to be treated as Scheduled Tribe or not. This confusion has been cleared from the first time on 2811-2000 i.e. on the date on which the Constitution Bench held that Halba Koshtis cannot be treated as Scheduled Tribe. Following the law laid down in the case of Kavita Solunke (supra), this Court in Writ Petition No. 900/2012 and others, have held that all Halba Koshti whose appointments had become final on 28-11-2000 are entitled to protection of their services. Not only this, the office memorandum

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issued by the Union of India on 10-8-2000 is also on the same lines, which protects the services of Halba Koshtis.

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Insofar as the other Scheduled Tribes are concerned, in case of Dattu Namdeo Thakur vs. State of Maharashtra, reported in 2012(3) Mh.L.J. (SC) 179 = (2012) 1 SCC 549, the Hon’ble Apex Court has held that disturbing the educational career or employment of a candidate which has become final with passage of time, will not be in the interest of any one. We are also of the view that disturbing the services of candidates who have rendered 25 years, on the ground of non-submission of the documents for verification of their caste/tribe claims, will not be in the interest of justice, particularly when the petitioners themselves have given an undertaking to give up their claim as belonging to Scheduled Tribes. Undisputedly, the petitioners caste claims were verified at the District Magistrate level, at the relevant time. The show cause notice which are issued to them are only on the ground that they have failed to submit their documents for forwarding their caste/tribe claims to the competent Scrutiny Committee. As already held in the case of Kavita Solunke (supra), and as already followed by us in Writ Petition No. 900/2012, the position prior to 28-112000, was a confused position, wherein the Halba Koshtis were to be treated as Scheduled Tribe, in

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view of the law laid down by the Division Bench in case of Abhay Parate vs. State of Maharashtra, reported in 1984 Mh.L.J. 289. In that view of the matter, we find that so far as Halbas are concerned, their services are liable to be protected.

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Insofar as the other Scheduled Tribes are concerned, their services are liable to be protected in view of the law laid down in Dattu Namdeo Thakur (supra)."

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6 In view of the judgment delivered by the Division Bench of

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this Court in the case of A.P. Ramtekkar and others (supra) as well as the judgment of the Supreme Court in the case of Kavita Solunke Vs.

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State of Maharashtra , reported in, [ 2012 (5) Mh.L.J. 921 ] and in the case of Shalini (supra), the Petitioner needs to be extended service protection apart from the Policy prescribed by the State Government in its Resolution dated 15^th June, 1995.

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7 In view of above, the order passed by the Sub-Divisional Officer dated 20^th March, 1999 directing termination of the services of the Petitioner deserves to be quashed and set aside and the same is accordingly quashed and set aside. The Petitioner would be entitled to be reinstated with continuity of service. The learned counsel for the

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Petitioner graciously submits that since the Petitioner was out of employment since the date of order of termination, he would not claim back-wages. In view of the statement made by the learned counsel for the Petitioner, on instructions, it is directed that the Petitioner shall not

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claim back-wages from the date of his termination till the date of his reinstatement. We direct Respondent Nos.3 and 4 to reinstate the Petitioner in service within a period of six weeks from today.

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8 It is hereby directed that the Petitioner shall not be entitled to claim service benefits as a member belonging to reserved category.

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9 Rule is accordingly made absolute in above terms. Not

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costs.

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[ V. L. ACHLIYA, J. ] [ R. M. BORDE, J. ]

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ndm

Chintaman Shivram Sonwane v. State of Maharahstra and Others

Case brief

What is this about?

What did the court decide?

Chintaman Shivram Sonwane v. State of Maharahstra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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