Writ Petition No.6956 of 2011

11th June, 2012

Petitioner Counsel: Mr. S.B. SHETYE with Mr. AVINASH FATANGARE
Respondent Counsel: Ms. PRIYADARSHINI BIRJE, Mr. C.R. SONAWANE

Cases Cited:
Vishwanath Pandurang Mahadeshwar Vs. State of Maharashtra, 2011(2) ALL MR 362=(2011) 1 Mh.L.J. 310 [Para 4,5,6,7]

JUDGMENT

A.M. KHANWILKAR, J. :- Rule. By consent, rule made returnable forthwith. Counsel for respective Respondents waive notice. By consent, heard finally forthwith.

2. This Petition was heard along with Writ Petition Nos. 10194/2010 and 6638/2011, as overlapping issues have been raised.

3. In the present Petition, under Article 226 of the Constitution of India, however, the Petitioner is seeking direction for issuance of writ of mandamus to direct the Respondents to waive the requisition of submitting Caste Validity Certificate, issued in favour of the Petitioner, by the Caste Scrutiny Committee and instead, issue appointment order in favour of the Petitioner. The Petitioner is also seeking declaration that the Government Resolution dated 19th July, 2011 is illegal, arbitrary and discriminatory and violative of Article 14 of the Constitution of India.

4. Briefly stated, the Petitioner asserts that she belongs to Hindu Vaishya Wani Caste. That caste was notified as part of Other Backward Class (for short OBC) category. The inclusion of Vaishya Wani in the list of OBC category, however, was set aside by this Court in case of Vishwanath Pandurang Mahadeshwar vs. State of Maharashtra, (2011) 1 Mh.L.J. 310 on 1st October, 2010 : [2011(2) ALL MR 362]. But, the said judgment was stayed for a period of 12 weeks. Before the said judgment was pronounced on 1st October, 2010, the Petitioner had already appeared for the examination for filling in post of Shikshan Sevak on 2nd May, 2010. Results of the said examination was declared on 1st June, 2010. The Petitioner was placed at Sr. No. 4 in OBC Category. In fact, the Petitioner received the communication dated 30th May, 2011 from Respondent No. 1 that she has been selected for the post of Shikshan Sevak from OBC Category and she must submit the Caste Validity Certificate within a period of 3 months from the date of receipt of the said Communication. Subsequent thereto, the State Government issued Government Resolution dated 19th July, 2011.

5. According to the Petitioner, the said Government Resolution protects the services of persons belonging to Vaishya Wani and Kulwant Wani castes, appointed against the reservation for OBC. It is stated that due to fortuitous circumstances of the representation made by candidates from Ratnagiri, the Petitioner was not formally appointed on the post of Shikshan Sevak. The Petitioner, therefore, submits that the protection given to the persons already appointed prior to the Resolution and excluding the persons appeared in the selection process prior to the decision in Mahadeshwar's case, [2011(2) ALL MR 362] (supra) dated 1st October, 2010, is discriminatory and violative of Article 14 of the Constitution of India.

6. After considering the rival submissions as it is indisputable that the Petitioner has not been formally appointed prior to 1st October, 2010, the question of Petitioner getting any benefit from Government Resolution dated 19th July, 2011 does not arise. Further, after the decision in Mahadeshwar's case dated 1st October, 2010, in law, the inclusion of Vaishya Wani in Entry 190 of the list of OBC category, notified by the State Government, stands effaced from the date of its inception and will have to be treated as non-est in the eye of law (we have dealt with this aspect at length in the companion matters decided today by a separate judgment, i.e. WP 10194/2010 and 6638/2011). In that view of the matter, the Petitioner, who belongs to Vaishya Wani Caste would not qualify to be appointed against reserved post for OBC. For the same reason, the Petitioner cannot seek any direction against the Caste Scrutiny Committee for issuance of Caste Validity Certificate as well. The fact that in future Vaishya Wani Caste is likely to be included in the list of OBC, pursuant to the recommendation to be made by the Backward Class Commission, will not be of any avail to the Petitioner. That inclusion will obviously be prospective inclusion. As of today, and more so on 30th May, 2011, when the letter was received by the Petitioner from Respondent No. 1, Vaishya Wani Caste was not recognised as OBC category. The State Government, by issuing Government Resolution dated 19th July, 2011 has protected only those who have already availed facility of OBC in the past, prior to the decision dated 1st October, 2010. The State Government, by no stretch of imagination, could protect the persons who were yet to avail benefit of OBC, after the judgment in the case of Mahadeshwar, [2011(2) ALL MR 362] (supra), that too, by issuing a Government Resolution.

7. The challenge to the Government Resolution being discriminatory in nature, therefore, does not commend to us. We see no merit in that challenge. Even though the post, against which the Petitioner has been selected, may have become vacant as on 2nd May, 2010, that would make no difference and will be of no avail to the Petitioner. Further, the fact that the brochure provides for interview and verification of original documents and issuance of appointment order to the qualified candidates on the same day, cannot be the basis to issue direction to the Respondent to appoint the Petitioner against the reserved post for OBC, inspite of the decision of this Court in Mahadeshwar's case, [2011(2) ALL MR 362] (supra). The argument that, if the Petitioner was to be appointed prior to 19th July, 2011, she would have been protected by virtue of Government Resolution dated 19th July, 2011, does not mean that the Government Resolution dated 19th July, 2011 is discriminatory. As aforesaid, the State Government, by issuing a Government Resolution, cannot protect the persons belonging to Vaishya Wani and Kulwant Wani, who are yet to be appointed or availed benefit of reservation of OBC, after 1st October, 2010.

8. In the circumstances, the Petitioner is not entitled for any of the reliefs claimed in this Petition. The same, therefore, deserves to be dismissed. Accordingly, this Petition is dismissed with no order as to costs.

9. Rule is discharged.

Petition dismissed.