JUDGMENT :

Ravindra V. Ghuge, J.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The Petitioner has put forth prayer clauses B to D as under:-

"B. By issuing appropriate Writ, order or direction in the like nature, the impugned order dated 12.02.2020 appointing husband of petitioner on supernumerary post for 11 months, issued by the respondent No.2 - Superintendent of Police, may kindly be quashed and set aside.

C. By issuing appropriate writ, order or direction in the like nature, impugned notice dated 15.07.2022 issued by Respondent No.2 thereby directing the petitioner to return / deposit the amount of gratuity and pensionary benefits within period of 03 days and withholding the bank account of petitioner may kindly be quashed and set-aside.

D. Grant stay to the effect and operation of order dated 12.02.2020 and impugned notice dated 15.07.2022 issued by Respondent No.2 Superintendent of Police, pending hearing and final disposal of petition."

3. By the impugned communication dated 15.07.2022, the Petitioner / widow has been informed by the Superintendent of Police, Nanded that as her husband was occupying a supernumerary post, she cannot get any retiral benefits and family pension. It is also mentioned that the gratuity amount of Rs.11,68,500/- was erroneously paid to her.

4. The issue involved in this petition is as to whether the Petitioner's husband was selected and appointed on a post reserved for the ST category. He belongs to the Mannervarlu ST category. He was appointed as a Police Constable by the Commissioner of Police, Brihanmumbai and later on transferred to Nanded. On 29.06.1991, her husband received the Mannervarlu ST certificate. On 12.02.2020, the deceased husband was informed that his appointment is converted to a supernumerary post for 11 months. On 06.06.2020, the deceased tendered a proposal for verification of his Tribe certificate alongwith the validity certificate issued to his biological cousin brother from the paternal side. On 17.06.2020, he passed away due to illness.

5. Respondent No.2 has filed an affidavit in reply through Shri Gajanan Dhondiba, PI Control Room Officer, Nanded dated 03.10.2022. It is specifically averred in paragraph No.4 that the details as regards the appointment of the Petitioner are not available in the Office at Brihanmumbai. His appointment order is not traceable. His service documents are not traceable. However, since his service book mentions his caste as Mannervarlu, it should be presumed that he was selected and appointed on the post reserved for ST category. It is further contended that the promotion order dated 24.08.2008 issued to the Petitioner would indicate that he got the said account of his belonging to the ST category.

6. It goes without saying that the Department has to establish that the Petitioner had applied for a post which was reserved for the ST category, that he was appointed on the said post because he belonged Mannervarlu ST category and that he derived service benefits till his death which were available for the reserved categories. We do not find a single document on record and it is plainly admitted by the respondents, that they do not have documents to show that the Petitioner had applied for a reserved post, was selected on a reserved post, owing to his belonging to the ST category.

7. We have perused the appointment order placed on record by the Petitioner and his promotion order which is annexed to the affidavit in reply filed by the Respondents. His appointment order does not indicate in any manner whatsoever, that he was appointed on a post reserved for the ST category. In the promotion order, there is no remark in front of the name of the deceased to indicate that he was promoted on a post which was reserved for a backward category. It is only in the last paragraph of the said order that it is mentioned that those persons who belong to the reserved categories, will have to produce their validity certificate