Civil Writ Petition No.8342 of 2006

15th February, 2008

Petitioner Counsel: Mr. R. K. MENDADKAR
Respondent Counsel: Mrs. M. P. THAKUR,Mr. MILIND DESHMUKH

Cases Cited:
Valsamma Paul Vs. Cochin University, (1996)3 SCC 545 [Para 6,11]
Ranjana Tukaram Sayre Vs. State of Maharashtra, 2002(4) ALL MR 774=2003(1) Mh.L.J. 14 [Para 7]
Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy, (2005)2 SCC 244 [Para 8]
State of Maharashtra Vs. Milind, 2001(1) ALL MR 573 (S.C.)=(2001)1 SCC 4 [Para 14]
Sandeep Subhash Parate Vs. State of Maharashtra, 2006(6) ALL MR 71 (S.C.)=(2006)7 SCC 501 [Para 14]

JUDGMENT

Smt. ROSHAN DALVI, J.:- The Petitioner belongs to Maratha caste by birth. She is married to a person belonging to Mahadev Koli, Scheduled Tribe. The Petitioner claims to belong to Mahadev Koli, Scheduled Tribe by virtue of her marriage to her husband.

2. The only question for determination in this Writ Petition is whether she can claim the advantages and benefits granted to Mahadev Kolis by virtue of her marriage.

3. The Petitioner has relied upon a couple certificate which does not grant the benefits claimed by her. She has also relied upon the Government Resolutions (G.Rs) dated 19th October, 1959 and 16th May, 1966 encouraging inter-caste marriages under which she would be eligible to all concessions granted to that Scheduled Tribe.

4. The Petitioner was appointed Junior Assistant by Respondent No.3 on 29th December, 2003 under the quota reserved for Scheduled Tribe. She submitted documents for issue of Caste Certificate showing that she belonged to Scheduled Tribe which was not by birth but by virtue of her marriage.

5. Respondent No.3 has terminated the Petitioner's service on 12 th December 2006. The Petitioner contends that the termination is void and has applied for a writ of Certiorari to set it aside.

6. The Petitioner's case is covered by the judgment of the Apex Court in the case of Valsamma Paul Vs. Cochin University, (1996)3 SCC 545 in which it is held that by virtue of birth in a forward community, a person who derives an advantageous start in life and is transplanted in a Backward Class by virtue of marriage does not become eligible to the benefit of Reservation either under Act 15(4) or 16(4) of the Constitution. It is observed in that judgment that acquisition of the status of Scheduled Caste by voluntary mobility would amount to playing a fraud upon the Constitution and frustrate the benign constitutional policy. Accordingly as per the constitutional mandate such a person was held not entitled to the benefits of reservation in any post reserved for backward class. The Petitioner would, therefore, not be entitled to claim the post to which she was appointed. Hence she would not be entitled to challenge her termination order passed on that ground.

7. Paul's case has been followed by the Division Bench of our Court in the case of Ranjana Tukaram Sayre Vs. State of Maharashtra, 2003(1) Mh.L.J. 14 : [2002(4) ALL MR 774] in which case an order invalidating the Caste Certificate was upheld and the Petition challenging such order was dismissed.

8. Similarly in the case of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors., (2005)2 SCC 244 a lady of a forward community having married a man from a Scheduled Tribe was held not eligible to contest election from a seat reserved for Scheduled Tribes.

9. In view of the aforesaid settled law the G.Rs dated 19th October, 1959 and 16th May, 1966 must be deemed to be impliedly set aside. The Petitioner cannot base her claim upon the said G.Rs.

10. Mr. Mendadkar on behalf of the Petitioner has relied upon the Division Bench judgment of this Court in the case of Vandana Vishwanath Londhe Vs. The State of Maharashtra & Ors. In Writ Petition No.3583 of 2003. That was a case of a Maratha lady married to a man of Thakar Community, which was Scheduled Tribe. She claimed benefits of Reservation to the post to which she was appointed on 29th March, 1995. Her services were terminated on 30th September 2002. After considering the ratio in Paul's case, though it was observed that the Petitioner therein was not entitled to the benefits conferred upon Thakar Community as by virtue of her birth she was not entitled to any benefits of reservation, since she was appointed in March, 1995 and had put in 7 years of service without any suppression of material facts, the order of termination of her service was set aside and she was directed to be reinstated with continuity of service, but without backwages and with a direction that her service record would be amended to show that she would not be entitled to benefits of reservation in future.

11. What is material to consider in that judgment is that the appointment of the Petitioner in that case was made before the judgment in Paul's case (supra).

12. In the later case of Fatima Froes Sadavarte Vs. State of Maharashtra a similar view as held by the Division Bench of this Court in Writ Petition No.8212 of 2004 on account of the fact that the Petitioner therein had put in 7 years of service before her caste certificate came to be verified. The reinstatement of service in that case was ordered upon the undertaking of the Petitioner that she would not be entitled to claim benefits allowed to Scheduled Tribes in future and upon making a suitable entry in her service record to that end.

13. It can, therefore, be seen that the law laid down by the Apex Court was followed. Only some concessions were made in view of the circumstances of those cases. The Division Bench judgment had not, as they could not, digressed from the position in law.

14. Mr. Mendadkar had also relied upon the case of State of Maharashtra Vs. Milind and others, (2001)1 SCC 4 : [2001(1) ALL MR 573 (S.C.)] and the case of Sandeep Subhash Parate Vs. State of Maharashtra, (2006)7 SCC 501 : [2006(6) ALL MR 71 (S.C.)] in which despite admissions obtained in Medical & Engineering Colleges respectively on a claim of the candidates belonging to Schedule Castes, upon verification done, and they having been seen not to belong as claimed, their degrees were not set aside but they were held not eligible to claim further advantages based upon their certificates. We may mention that reliance upon those judgments in this case is entirely misplaced. The circumstances that need consideration in cases of students are entirely different from those of Government employees. The consideration of the enormous expense that the Government is put to, to finance the education of each student for conferring them degrees, was the basis for the grant of the limited reliefs in those cases. The directions of the Apex Court in para 35 of the judgment in the case of Milind (supra) cries for attention. That determines the yardstick and the parameters for the claim made, though otherwise untenable in law. It is worth quoting the observations of the Apex Court for the constitutional mandate of reservation as an avowed, noble object for the upliftment of the poorer social strata of the Society. It runs thus :

"35. In order to protect and promote the less fortunate or unfortunate people who have been suffering from social handicap, educational backwardness besides other disadvantages, certain provisions are made in the Constitution with a view to see that they also have the opportunity to be on par with the others in the society. Certain privileges and benefits are conferred on such people belonging to Scheduled Tribes by way of reservations in admission to educational institutions (professional colleges) and in appointments in services of State. The object behind these provisions is noble and laudable besides being vital in bringing a meaningful social change. But, unfortunately, even some better-placed persons by producing false certificates as belonging to Scheduled Tribes have been capturing or cornering seats or vacancies reserved for Scheduled Tribes defeating the very purpose for which the provisions are made in the Constitution. The Presidential Orders are issued under Articles 341 and 342 of the Constitution recognising and identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefits of reservation in the matters of admissions and employment. If these benefits are taken away by those for whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their sufferings will continue. Allowing the candidates not belonging to Scheduled Tribes to have the benefit or advantage of reservation either in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of the Constitution."

Keeping that very mandate present to our minds, we consider it most improper and inappropriate for the Petitioner to be granted the Writ claimed. We would be going against the Constitutional morality and legality if we allowed ourselves to succumb to the claim of the Petitioner even in the name of mercy.

15. The Petitioner herein has prayed for a writ of Certiorari for quashing the order of termination of the Petitioner's service dated 12th December, 2006. The Petitioner claims to be reappointed to the post to which she was appointed as late as on 29 th December, 2003, about 7 years after the law by which she was governed was settled in Paul's case.

16. The prayer of the Petitioner is rather impertinent, given the settled legal position. The order, if granted, would be equally illegal in view thereof. The reliance upon the Division Bench order is completely misconceived. It ignores the present legal position. The Petitioner has obtained employment claiming the benefits of reservation well after Paul's case.

17. The Petitioner cannot be allowed to be reinstated. The order of termination is seen to be correct and valid, given the admitted position of the Petitioner's birth in a forward community and her marriage to a man in a backward tribe.

18. Consequently the Petition is dismissed with costs. Rule stands discharged.

19. Interim relief already granted on 19th December, 2006 shall continue for a period of 12 weeks despite the objection of the learned A.G.P Mrs. M. P. Thakur.

Petition dismissed.