Back
In the High Court of Bombay at Nagpur
ANOOP V. MOHTA & Z.A. HAQ, JJ.
Ku. Vijaya Deorao Nandanwar & Others
Versus
Chief Officer, Municipal Council & Others
Writ Petition Nos. 5530 of 2012, 5031 of 2012, 1511 of 2013 & 4274 of 2012
Decided On : 10-07-2013
Termination of service on invalidation of Caste Certificate after about 15 years of service just and proper. - Order of protection/reinstatement are on foundation of certificate on date when employee/student got benefits and that has been continued by Supreme Court orders. Government Circulars from time to time, on contrary though granted/ extended protection to Halba-Koshti, nowhere dispenses with requirement of certificate but insisted for such certificate ev en to whom Court has granted protection/reinstatement.
Maharashtra Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis), Nomadic Tribes other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2000 - Section 10 - Constitution of India, Articles 14, 144, 226, 227 - Termination of Service on invalidation of caste claim.
Termination of Service on invalidation of caste certificate after 15 years of service not proper as protection granted to similarly situated persons. - Union of India and State of Maharashtra extended benefit of Halba Koshti/Koshti and similarly situated persons by various Circulars. Submission that those Circulars are contrary to provisions of law and cannot be foundation to grant protection referring to Division Bench judgment in Rajendara v. State, 2013 (3) Mh LJ 393 and Archana Dadarao Pethkar’s case, 2013 (4) All MR 807 is unacceptable. Contesting respondents Union of India, State of Maharashtra and concerned respondents just cannot overlook binding judgments/directions issued by Supreme Court from time to time by reinforcing that protection so enlarged/granted by Constitution Bench, needs to be extended to all similarly placed persons, specifically in view of their own Circulars. They are stopped from challenging or opposing protecting relief. All are bound by ’law of precedent’, doctrine of ’judicial discipline’ and above all basic principles of treating ’equals equally’ flowing from Article 14.
While exercising jurisdiction under Article 226, it is prime duty of Court to protect constitutional rights and to see that everyone has been treated equally. Argument that judgment passed in writ petition and review petition refusing protection of service to petitioner are based on principles of ’res judicata’. Law concerning ’res judicata’ is based on public policy and procedural law and it cannot deter Court from protecting constitutional and fundamental rights of petitioner. When fundamental rights are to be protected, then procedural laws cannot deter the Court from denying relief and this Court cannot turn its eyes on ground that continuation of violation of fundamental rights and constitutional rights cannot be looked into in view of procedural impediments.
Power of Article 142 vests with Supreme Court. Power of Article 226 of Constitution of India vests with High Court. These powers are wide enough to cover various aspects including to exercise discretionary powers in interest of justice. Both powers are equally important and independent. There is no question of any restriction. Power of Supreme Court and High Court of judicial review is to issue such directions against any person including any authority or any Government to enforce legal and fundamental rights and for ’any other purpose’ to do complete justice.
(Anoop V. Mohta, J.) Rule returnable forthwith. Heard finally with the consent of the parties along with connected matters, therefore, a common judgment, as facts and circumstances are similar and so also the referred and the relied judgments and the laws.
2. By this petition, the petitioner (in W.P. No. 5530/12) has invoked Articles 226 and 227 of the Constitution of India and prayed as under:
“Protect the services of the petitioner in view of latest judgment of the Hon'ble Supreme Court in case of Kavita Solunke in SLP No. 5821/12 decided on 9.8.2012 (Annexure No.6), reported in 2012(5) Mh.L.J. 921 by quashing and setting aside the termination order dated 18.2.2010 issued by the respondent (Annexure no. 5 ) and reinstating the petitioner in the services as Assistant Teacher, in the interest of justice.”
3. The petitioner was appointed as an Assistant Teacher by the respondent/Chief Officer, Municipal Council, Wardha, against the vacancy reserved for Scheduled Tribe category based upon a caste certificate belonging to “Halba-Scheduled Tribe” on 29.7.1998. The petitioner was working on the post accordingly. The respondent/management withhold the salary of the petitioner for non production of the caste certificate (The certificate) which was pending since 2002. By order dated 18.7.2005, this Court directed the Caste Scrutiny Committee (The Committee) to dispose of petitioner's case within a period of four months with the observation that “if the report is adverse, it will be open for the respondents to take such steps as are permissible in law.”
4. By order dated 7.11.2009, after considering the material, the following conclusion was recorded –
“16. After considering all the documents, facts, Police Vigilance Cell report, School record, wherein the caste of the candidate's father and real paternal younger uncle had been recorded as `Koshti', prior to the proclamation of the Scheduled Tribes Order, 1950 and in exercise of power vested vide Maharashtra Act No. XXIII of 2001, the Caste Scrutiny Committee has come to the conclusion that Ku. Vijaya Deorao Nandanwar does not belong to the Halba, Scheduled Tribe and hence her claim towards the same is held invalid. Her Caste Certificate granted/issued by the Executive Magistrate, Narkhed, Distt. Nagpur, vide cert. No. 193/MRC-81/92-93, dated 21.8.1992 is hereby cancelled. “
5. The petitioner, therefore, challenged the order in W.P. No. 5008/09. After hearing the parties including the State of Maharashtra, the writ petition was rejected by the following short order. “Present is a case where petitioner does not show that she is of a tribal origin, and has migrated outside. On petitioner's own version, it is not a case of confusion or failure to prove tribe claim, rather it is a case that to her own knowledge and to her father's knowledge, she belongs to caste Koshti and secured a certificate of being Halba Scheduled Tribe. Thus, the petitioner has usurped the chances of a genuine tribal candidate, and she is not entitled for protection in the employment. The case law relied upon by the petitioner does not help her. Even on this count, petitioner has no case. In the result, Rule is discharged.”
6. Admittedly, the petitioner was terminated as the Committee had invalidated her caste certificate declaring the petitioner belongs to “Koshti” caste and not “Halba” on 7.11.2009. The decision was confirmed by this Court and lastly by rejecting even the Review on 2.7.2010. She could not take it further for the reasons averred in the petition. Every time it is not possible and affordable to challenge every order to higher courts. No point in discussing undisclosed or disclosed reason for the same.
7. The petitioner filed the present petition based upon Kavita Solunke v. State of Maharashtra & ors. (2012(5) Mh.L.J 921) decided on 9.8.2012, seeking protection of service, apart from prayer to quash and set aside the termination order. The reliance is also placed upon the Hon'ble Supreme Court (
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
