Writ Petition No.6913 of 2009,Writ Petition Nos.6427 of 2009,Writ Petition Nos. 6429 of 2009,Writ Petition Nos. 6434 of 2009,Writ Petition Nos. 6436 of 2009,Writ Petition Nos. 6437 of 2009,Writ Petition Nos. 6915 of 2009,Writ Petition Nos. 6918 of 2009,Writ Petition Nos. 6932 of 2009,Writ Petition Nos. 6934 of 2009,Writ Petition Nos. 6938 of 2009,Writ Petition Nos. 7135 of 2009

2nd September, 2009

Petitioner Counsel: Mr. P. B. KAKADE
Respondent Counsel: Mr. VINAY MASURKAR,Mr. C. R. SONAWANE,Mr. NITIN DESHPANDE

Cases Cited:
Chandrabhan Yamaji Nandanwar Vs. Director of Health Services, Mah. State, Bombay, 1999(1) ALL MR 14=1999(1) Mh.L.J. 536 [Para 5]
Anil Vasantrao Shirpurkar Vs. State of Maharashtra, 2002(4) ALL MR 323=2002(4) Mh.L.J. 365 [Para 5]
G. Sudarshan's case, (1995)4 SCC 644 [Para 6]
Prakash Namdeorao Kedar Vs. Union of India, 2003(4) ALL MR 409 (F.B.)=2003(4) Mh.L.J. 233 [Para 7]
Bank of India Vs. Avinash D. Mandivika, 2005(5) ALL MR 1023 (S.C.)=AIR 2005 SC 3395 [Para 7]

JUDGMENT

R. M. SAVANT, J.:- Rule, with the consent of the parties made returnable forthwith and heard.

2. The above Writ Petitions involve a common question and are therefore, dealt with together and disposed of. In Writ Petition Nos.6427 of 2009, 6429 of 2009 to 6434 of 2009, 6436 of 2009 and 6437 of 2009, Rule has already been issued. However, since the issue involved in the aforesaid Writ Petitions and in Writ Petition No.6913 of 2009 and the other companion matters is identical, we thought it proper to place the said Writ Petitions in which Rule has been issued also for hearing with the consent of the learned counsel for the parties.

3. All the petitioners above named have approached this Court against the direction of the respondent No.2 - Zilla Parishad calling upon the petitioners to submit their Caste Certificates by 27th July, 2009, so that the same can be referred to the concerned Caste Scrutiny Committee for consideration of the validation of the Caste claim, as each of the petitioner in the above Writ Petitions has been appointed in a post meant for the reserved category.

4. The facts in Writ Petition No.6913 of 2009 are referred to for the sake of convenience. The petitioner in the said Writ Petition came to be appointed on 1st December, 1995, as an Assistant Teacher by the respondent No.2. The respondent No.2 by letter dated 15th July, 2009, directed the petitioner to submit her Caste Certificate by 27th July, 2009, so that the same could be sent for verification to the concerned Caste Scrutiny Committee for validation. The said communication dated 15th July, 2009, has been impugned in the said Writ Petition, similar communications have been impugned in the other Writ Petitions including the Writ Petitions in which Rule has been issued.

5. The principal contention of the learned counsel for the petitioners is that after a passage of almost 14 years the petitioners' Caste claim could not be referred to the Caste Scrutiny Committee. In the event if the Certificates on which the petitioners rely are invalidated, the same would cause prejudice to the petitioners, as the petitioners then would not be in a position to seek employment elsewhere on account of the age bar. The learned counsel for the petitioners relies upon two Division Bench Judgments of this Court reported in 1999(1) Mh.L.J. 536 : [1999(1) ALL MR 14] in the matter of Chandrabhan Yamaji Nandanwar Vs. Director of Health Services, Mah. State, Bombay and others and Judgment of the Division Bench reported in 2002(4) Mh.L.J. 365 : [2002(4) ALL MR 323] in the matter of Anil Vasantrao Shirpurkar Vs. State of Maharashtra and others. It has been held in the aforesaid two Judgments that a reference to the Caste Scrutiny Committee by the employer should be made within a reasonable time and in the Judgment in Chandrabhan's Case (Supra), it is held that if the person is appointed in the Government or Semi Government Organisation from the reserved Category availing the benefits extended to such Category in the employment, the employer is required to make a reference for verification of the Caste Certificate of such employee to the Caste Scrutiny Committee within a period of two years, which is normally prescribed for confirmation of services of the probation and if the reference is made after the period of two years, the same was held to be in violation of Article 14 of the Constitution of India being beyond a reasonable period. The Division Bench in Anil Vasantrao Shirpurkar's case (supra) relied on the law laid down in Chandrabhan's Case (supra) and also concluded that the person, who is appointed in the Government or Semi-Government employment, normally remains on probation for a period of two years and before completion of the period of probation the employer should initiate proceedings for reference of the Caste Certificate of such employee for verification by the Caste Scrutiny Committee.

6. After the said two Division Bench Judgments, the matter was referred to a larger Bench in view of the reference made in Writ Petition No.786 of 2002 by Order dated 3rd February, 2003 and in Writ Petition No.1598 of 2003 by Order dated 17th April, 2003, by the Division Benches sitting at Nagpur. Accordingly, the Full Bench of this Court has considered the said issue and after holding that the doctrine of reasonable time of two years is not mandatory in nature and is a rule of prudence as laid down by the Division Benches of this Court and therefore even from the said point of view there was no inconsistency as such with the Judgment of the Apex Court in G. Sudarshan's, (1995)4 SCC 644 case the Full Bench has concluded that if there is delay in making reference for some valid reason, the reference made by the employer beyond the period of two years is neither invalid nor any Order passed by the Caste Scrutiny Committee on such reference is null and void. The conclusion of the Full Bench is in paragraph 47 of the Judgment which is reproduced herein under :-

"47. A careful scrutiny or the judgments and the law laid down by this Court in cases of Chandrabhan Nandanwar's case (supra), Anil Shirpurkar's case (supra) and Prakash Pralhad Ingle's case (supra) as well as the law laid down by the Apex Court in cases of G. Sudarsan (supra) and Central Excise, Jaipur (supra), the conclusion, which we have arrived at the legal proposition which finally emerges, is summarized, in nutshell, as follows :

The employer/Government, is required to refer the Caste Certificate of its employee for verification to the Caste Scrutiny Committee as early as possible from the date of the order of appointment of such employee. However, if there is a delay in making reference for some valid reasons, the reference made by the employer beyond the period of two years is neither invalid, nor any order passed by the Caste Scrutiny Committee on such reference is null and void. In case of an employee, who has obtained a Caste Certificate by playing fraud, the employer is entitled to refer the caste claim of such employee to the Caste Scrutiny Committee as and when such fraud is detected and the question of applying any kind of limitation in this regard does not arise.

We answer the reference accordingly, place the Writ Petitions before the Division Bench for disposal on merits."

7. In view of the Full Bench Judgment reported in 2003(4) Mh.L.J. 233 : [2003(4) ALL MR 409 (F.B.)] in the matter of Prakash Namdeorao Kedar and others Vs. Union of India and others, the petitioners cannot rely upon the Division Bench Judgments of this Court (Supra) in support of their contention that a reference to the Scrutiny Committee made after a period of two years of appointment is bad. Therefore, the submission advanced on behalf of the petitioners that a reference could not be made after a period of 14 years cannot be countenanced. At this stage, it would also be useful to refer to the Judgment of the Apex Court reported in AIR 2005 SUPREME COURT 3395 (1) : [2005(5) ALL MR 1023 (S.C.)] in the matter of Bank of India and another Vs. Avinash D. Mandivikar and others. In the said Judgment the Apex Court has held that if the Caste claim is based on a fraud, then even though a reference is made belatedly, the same would not affect the legality of the reference made as fraud permeates the entire proceedings.

8. It is pertinent to note that none of the petitioners abovenamed have submitted their Caste Certificates to the respondent No.2, though each of them has been appointed in a post meant for the reserved Category, and even though the respondent No.2 has asked the petitioners to submit their Caste Certificates after almost 10 to 14 years of their employment, in view of the pronouncement of the Full Bench of this Court (Supra) as well as Judgment of the Apex Court (Supra), in our view, the action of the respondent No.2 cannot be faulted with. In our view, therefore, there is no merit in the above Writ Petitions, which are accordingly dismissed. Rule in all the above Writ Petitions to stand discharged.

9. However, the petitioners are granted time upto 31st October, 2009, to submit their Caste Certificates to the respondent No.2. The respondent No.2 shall thereafter refer the said Certificates to the concerned Caste Scrutiny Committee for verification and request the concerned Caste Scrutiny Committee to expedite the process of verification.

Petitions dismissed.