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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, R.I. Chagla, JJ.
Leela Dineshsingh Chauhan - Petitioner
Versus
The State of Maharashtra and ors. – Respondents
Writ Petition (L) No. 10702 of 2021
Decided On : 22-10-2021
Constitution of India, 1950 - Maharashtra State Public Services Reservation Act, 2001 - Section 15, 2(a) 10, 11 and 4 - Full time Assistant Professor – Termination of Service - whether impugned letter of termination issued by respondent on ground that petitioner did not submit Caste Validity Certificate based on Government Resolution is valid or not - Whether appointment of petitioner made prior to decision in case of would be protected as embargo in Maharashtra happened from onwards. -Whether provisions of said 2001 Act would be at all attracted to petitioner who never claimed any reserve category caste by virtue of her marriage at any point of time and more particularly when both parties relied upon and acted upon then Government Resolution granting benefit of caste of spouse - Whether petitioner had made any false caste claim for purpose of getting an employment and whether such caste claim was at any point of time invalidated as false or fraudulent by any authority at any point of time or not - whether a person who has never claimed the benefit of caste of his or her spouse being a person of reserved category while seeking an employment on posts reserved for backward class candidates based on such marital status on basis of Government Resolution in force at that point of time can be said to have committed fraud on Constitution.
Finding of the Court : Since the petitioner never claimed to belong to the reserved category and always claimed to be an open category to the knowledge of the respondent nos. 2 and 3, there was no question of the petitioner producing the caste validity certificate belonging to the reserved category. The termination of the services of the petitioner by the letter dated 8th June, 2021 by the respondent nos. 2 and 3 is thus illegal and deserves to be quashed and set aside. The letter dated 11th February, 2021 addressed by the respondent nos.2 and 3 to the petitioner expressing the intention to terminate the services of the petitioner is also quashed and set aside - Respondent shall to continue to employ petitioner as full time assistant professor and to grant promotions which she is entitled to till she attains age of superannuation and pay wages and other benefits to petitioner along with selection grade till date - Respondent nos. 2 and 3 also shall pay arrears of wages if any to petitioner within four weeks from today - It is made clear that petitioner shall not claim to belong to any reserved category at any point of time - Service record of petitioner shall be corrected by respondent by incorporating suitable entry therein to effect that petitioner does not belong to any reserve category - Impugned order of termination indicates that services of petitioner in respondent no.2 college has been terminated on ground that petitioner failed to submit caste validity certificate though was called upon to produce by respondent nos. 2 and 3 and was warned that in case of failure of the petitioner, the respondent would be constrained to take appropriate steps. In our view, since petitioner never claimed to belong to reserved category and always claimed to be an open category to knowledge of respondent there was no question of petitioner producing caste validity certificate belonging to reserved category - Termination of services of petitioner by letter by respondent nos. 2 and 3 is thus illegal and deserves to be quashed and set aside - letter addressed by respondent to petitioner expressing intention to terminate services of petitioner is also quashed and set aside.
Result : Writ petition is allowed
JUDGMENT :
R.D. DHANUKA, J.
Rule. Respondents waive service. By consent of the parties, Petition is heard finally.
2. By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioner seeks writ of mandamus directing the Respondent Nos.2 and 3 to continue to employ the Petitioner as full time Assistant Professor and not to act upon the letter dated 11th February, 2021, to pay wages of the Petitioner and to give selection grade to the Petitioner w.e.f. 1st September, 2005 till date with payment of arrears. The Petitioner has also prayed for quashing and setting aside the termination letter dated 8th June, 2021 issued by the Respondent Nos.2 and 3. By consent of the parties, the Writ Petition is heard finally. Some of the relevant facts for deciding the Writ Petition are as under :-
3. During the period between 1992-94, the Petitioner was working in Sathaye Junior College run by Respondent No.3. Some time in the month of August, 1994, the Petitioner appeared for interview pursuant to an advertisement for the post of lecturer issued by Respondent No.2 College. She was appointed on the said post by Respondent No.2 w.e.f. September, 1994. On 24th November, 1995, the said appointment of the Petitioner on the said post of lecturer was approved by the University of Mumbai on probation for a period of two years. Vide letter dated 19th November, 1996, the Petitioner was confirmed for the said post, however, w.e.f. 30th August, 1996. The Petitioner was placed in lecturer senior scale vide letter dated 14th September, 2006 but w.e.f. 1st September, 1999.
4. Prior to the date of Petitioner’s joining with the Respondent No.2 College for the said post of lecturer, the Petitioner was married to one Mr. Dineshsingh Manoharsingh Chauhan on 12th July, 1993 who belonged to Nomadic Tribe (for short “NT”). The Respondent No.4 issued a couple certificate dated 15th April, 1994 on the basis of the document submitted by the Petitioner such as marriage certificate and caste certificate of husband. The Petitioner herself does not belong to NT. The post was advertised for reserved NT category. On 18th March, 1970, the Government of Maharashtra issued a Government Resolution directing that if the husband belongs to a denotified tribe / NT and his wife does not belong to a denotified tribe / NT all concessions admissible to denotified tribe / NT would be admissible to the couple. If the progeny claims to be belonged to the community of the father, all concessions admissible to the denotified tribe / NT would be admissible to the progeny.
5. It is provided that if the progeny claims to belong to the community of the mother, no concession would be admissible. Further it was provided that if the husband belongs to a non denotified tribe/ NT and wife belong to a denotified tribe/ NT, no concessions would be admissible to the couple. Similarly, no concessions would be admissible to the progeny. It is the case of the Petitioner that in view of the said Government Resolution dated 18th March, 1970 and as the husband of the Petitioner who belongs to NT, the Petitioner became entitled to all concessions admissible to the couple in view of the said GR. Based on the said GR, the Petitioner was granted the said employment for the post of lecturer which was for NT category.
6. On 27th January, 1976, the State Government issued a circular holding that while such a non backward candidate would not be entitled to caste certificate, she will be entitled to all the concessions. On 4th January, 1996, the Hon’ble Supreme Court delivered a judgment in case of Valsamma Paul (Mrs.) Vs. Cochin University and Ors. (1996) 3 Supreme Court Cases 545 holding that open category person is not entitled for benefit of reservation upon marriage with the person belonging to reserved category. The Petitioner was confirmed in the said post of lecturer after the said judgment of the Hon’ble Supreme Court in case of Valsamma Paul (Supra) but w.e.f. 30th August, 1996. On 7th Ma
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