Protection granted under earlier Government Resolutions cannot be taken away by a subsequent Resolution with retrospective effect.

JUDGMENT :

R.D. Dhanuka, J.

1. Rule. Learned A.G.P. waives service for respondents.

2. Rule is made returnable forthwith.

3. By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned the validity of clause 1 (b) and (c) of the Government Resolution dated 21.12.2019 issued by respondent no.1. He also prays for a writ of certiorari for quashing and setting aside the order dated 25.2.2020 issued by respondent no.2 putting the services of the petitioner on supernumerary post for a temporary period of 11 months or till the date of retirement, whichever is earlier. The petitioner also seeks a writ of mandamus against respondent no.2 to forthwith grant and release the pension and pensionary benefits to the petitioner as he has retired from service on superannuation, on 31.5.2020.

4. Petitioner was appointed as Talathi against a post reserved for Scheduled Tribe category, on 4.11.1981. His tribe claim was referred for verification to the Scheduled Tribe Certificate Scrutiny Committee in the year 1994. The tribe claim of the petitioner was invalidated by the Committee by order dated 29.7.1994. The petitioner preferred a Writ Petition bearing No.4129 of 1994. One of the employees had filed complaint before the Maharashtra Administrative Tribunal against the petitioner. The Tribunal, by order dated 28.11.2006, directed the Collector, Raigad to accommodate the services of the petitioner considering his service tenure.

5. Petitioner thereafter obtained caste certificate as belonging to “Koli” - Special Backward Class from the Sub-Divisional Officer, Alibag and obtained certificate of validity on 9.2.2007.

6. Petitioner was thereafter promoted as Naib Tahsildar on 12.1.2011 and promoted as Tahsildar from open category by order dated 13.9.2019. On 6.7.2017, the Honourable Apex Court in Civil Appeal No.8928 of 2015, quashed and set aside various Government Resolutions and Circulars protecting services of the candidates despite invalidation of their tribe claims.

7. The Division Bench of this Court at Nagpur in Writ Petition No.3140 of 2018 accepted the statement of the State Government regarding appointment of employees on supernumerary posts whose tribe claims were held invalid. Clause 1 (b) and 1 (c) of the Government Resolution dated 21.12.2019 directed that the employees who have surrendered their tribe claims or who have submitted the certificate of validity of Special Backward Class after invalidation of their tribe claims have been chosen to issue with fresh appointment on supernumerary post. On 25.2.2020, respondent no.2 placed the petitioner in service on supernumerary post for a temporary period of 11 months or till the date of retirement, whichever is earlier, on the basis of the Government Resolution dated 21.12.2019, issued by the Government of Maharashtra. On 31.5.2020, the petitioner retired from service on superannuation. The respondents, however, withheld pension and pensionary benefits in view of the services of the petitioner having been placed on supernumerary post at the time of retirement. The petitioner thereafter made a representation to the respondents, however, of no avail.

8. Learned Counsel for the petitioner invited our attention to various Government Resolutions and would submit that said clauses 1 (b) and 1 (c) of the Government Resolution dated 21.12.2019 are violative of Article 19 of the Constitution of India. The petitioner was already granted protection in service in view of the Government Resolution dated 15.6.1995 and subsequent Government Resolutions being not covered under the impugned clause 1 (b) and 1 (c) of the Government Resolution dated 21.12.2019. A large number of similarly situated employees have been granted protection. It is submitted that the protection granted by earlier Government Resolutions could not have been taken away by the subsequent Government Resolution dated 21.12.2019.

9. Learned Counsel placed reliance on the judgment delivered by the Division Ben