A.P. Bhangale, J.

1. Rule returnable forthwith. Heard finally with the consent of the learned Counsel for the respective parties.

2. The petitioner has questioned sustainability of the impugned order, dated 15th March, 2013 passed by the Office of the Divisional Commissioner, Amravati Camp whereby the Assistant Commissioner (Backward Class Section, Amravati) communicated that the services of the petitioner cannot be protected in view of Section 10 (1) of the 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 and also under the Government decision, dt.24.6.2004. The roster was directed to be prepared accordingly.

3. The facts are that the petitioner claimed that she belonged to ‘Dhangar’ Caste. The Government of Maharashtra vide Government Resolutions dt. 13.10.1997, 17.1.1990 and 25.1.1990 changed the social status of Dhangar as ‘Dhanawar’ notified as Nomadic Tribe. (Nomadic tribe (c) at Sr. No. 29 under the Government’s Resolution dt.6.8.1992). It is case of the petitioner that, on or about 3.7.1995, respondent no.2/Trust had issued an advertisement calling upon the applications for the post of Assistant teacher in respondent no.3‘s Junior College. The petitioner who had qualification as M.A., B.Ed. applied for the said post. On 18.7.1995, the petitioner was appointed as an Assistant teacher. In 1996, the Deputy Director of Education approved her appointment. The petitioner had completed probation and thus, became a permanent employee.

4. The petitioner claimed that, respondent no.1, in consequence to the approval, had approved interchange of the roster point upon the roster submitted and on 16.8.2012, respondent no.3/Headmaster had submitted Caste claim of the petitioner to the Divisional Caste Certificate Scrutiny Committee No.1, Amravati Division, Amravati. The petitioner moved her representation for not taking any adverse action against her since her caste claim is pending.

5. Respondent no.2, however, terminated the services of the petitioner. According to the petitioner, there is a post vacant for VJ/NT category for the petitioner to work. On no.2 has already submitted proposal to absorb the petitioner.

6. It is settled principle of law that if the appointment is meant for the reserved category it cannot be converted into an open category unless permitted by the Rules applicable. In the institutions which are aided and are under the control of the State or Statutory bodies, Constitutional doctrine of equality and non-discrimination must be respected as mandated by Articles 14 and 16 of the Constitution of India. The question is about protection of services of the person who claimed as belonging to Nomadic Tribe at the time of recruitment/appointment and succeeded continuing to serve, although, in fact, such person could not have claimed the benefit of reservation. Protection can be granted if appointee has right to the employment under the relevant rules and after a proper competition amongst qualified persons, after due process of selection under relevant rules vide ruling in the case of State of Bihar vs. Upendrasingh, (2009) 5 SCC 65. When recruitment rules are made, the employer is bound to comply with the same. The appointment in violation of the rules is nullity as the appointment cannot be through the back door. Articles 15 & 16 of the Constitution of India have objectives to ensure that benefit shall be granted to genuine SC/ST persons with utmost expedition and promptitude. Those who are entitled to benefit of reservations are also entitled for fair and efficient process to obtain certification or verification; adjudication with reasonable dispatch. Fairness contemplates that the claimant shall not be subjected to cumbersome; tardy; harassing process.

7. Article 16 of the Constitution of India contemplates that appointment