Writ Petition No.3441 of 2014

6th January, 2015.

Petitioner Counsel: Mr. S.G. JOSHI
Respondent Counsel: Mr. A.D. SONAK

Cases Cited:
Arun s/o. Vishwanath Vs. State of Maharashtra and Ors., 2015(1) ALL MR 799 (F.B.)=2015 (1) Mh.L.J. 457 [Para 2]

JUDGMENT

ANOOP V. MOHTA, J. :- Rule. Rule made returnable forthwith. The petition is heard finally by consent of the learned counsel for the parties.

2. The petitioner, by this petition, submitted to grant a protection in service after invalidation of the caste claim, in view of the judgment dated 22.12.2014 in Arun s/o Vishwanath .vs. State of Maharashtra and others, 2015 (1) Mh.L.J. 457 : [2015(1) ALL MR 799 (F.B.)], whereby a Full Bench of this Court, while considering to grant service protection and similar benefits, by referring to the earlier Supreme Court judgments and the judgments of this Court, has concluded as under :

53. In view of above, we answer question no.1 in the affirmative, holding that the relief of protection of service after invalidation of caste claim can be granted by the High Court on the basis of the decision of Hon'ble Supreme Court in the case of Kavita Solunke .vs. State of Maharashtra and others, reported in 2012 (5) Mh.L.J. (S.C.) 921 = (2012) 8 SCC 430, and the subsequent decision in the case of Shalini .vs. New English High School Association and others, reported in 2014 (2) Mh.L.J. (S.C.) 913 = (2013) 16 SCC 526.

75. We, therefore, do not enter into the merits of the claim and leave it for the concerned Benches to decide, on the facts and circumstances of each case, whether the protection need to be granted or not. But we conclude in this judgment that

(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from the employment or cancellation of appointments that have become final prior to the decision in Milind's case on 28.11.2000.

(ii) upon invalidation of the caste claim by the Scrutiny Committee, the benefits obtained or appointments secured from 28.11.2000 up to 18.10.2001, can be withdrawn or cancelled, depending upon the terms of the employment, if any, in writing.

(iii) the benefits obtained or appointments secured after coming into force of the said Act on 18.10.2001 can be withdrawn or cancelled immediately upon invalidation of the caste claim by the Scrutiny Committee.

(iv) the benefits of protection in service upon invalidation of the caste claim is available not only to the persons belonging to "Koshti" and "Halba Koshti", but it is also available to the persons belonging to Special Backward Class category on the same terms as is available to "Koshti" and "Halba Koshti", and

(v) the claim of the persons belonging to Nomadic Tribes, Vimukta Jatis and Other Backward Class category shall be decided on the lines of the decision of the Apex Court in the case of R. Unnikrishnan and another vs. V. K. Mahanudevan and others, reported in 2014 (4) Mh.L.J. (S.C.) 1 = 2014 (4) SCC 434.

3. The Full Bench of this Court in Arun (supra) has accepted the basic principles to grant protection of services even to other category/caste than "Halba/Koshti" even after invalidation of the caste claim by the Scrutiny Committee, by following of the Supreme Court judgments stated to be under Article 142 of the Constitution of India. Now the issue is also settled by this court in this regard as the High Court under Articles 226 and 227 of the Constitution of India, in view of above, requires to follow the Supreme Court judgments, irrespective of nature of judgment under Articles 141 or 142 of the Constitution of India. Learned counsel appearing for the parties, therefore, submitted to pass the protective order on similar lines.

4. The petitioner applied as belongs to 'Koli Mahadeo' (Scheduled Tribe) and participated in the proceedings. By order dated 22.6.2012, the scrutiny committee declined to grant validity certificate, as prayed. However, held that the petitioner belongs to "Koli", which is not the Scheduled Tribe it is a Special Backward Class (SBC). The petitioner, therefore, restricted the prayer to grant protection in service in view of the above law.

5. In the present facts, the petitioner has been in service since 1996 now declared to be belonging to SBC, the protection can be extended even to such community, in view of specific observation in paras 60 and 61, held as under :

"..It is made clear that the respondent in the said case shall not be entitled to claim any benefit in future as a Scheduled Caste candidate, but no benefit admissible to him as an OBC candidate shall be denied. Following the said decision of the Apex Court, the Division Bench of this Court in Rakesh Dafade's case (supra) has granted protection to the persons belonging to "Koli" caste falling in the Special Backward Class category.

In view of the aforestated law laid down by the Apex Court after considering the effect of the Government Resolutions dated 15-6-1995 and 30-6-2004,which are applicable to all the persons belonging to the Special Backward Class category, we are of the view that the protection granted in Milind's case to the persons belonging to caste "Koshti" or "Halba Koshti" in terms of the decision of the Apex Court in Milind's case, is also available to all the persons belonging to the Special Backward Class category included in the Government Resolution dated 15-6-1995. There cannot be any different treatment for the persons, who are similarly situated, merely for the reason that in most of the cases, the persons belonging to caste "Koshti" or "Halba Koshti" have approached the Apex Court for grant of protection. The interpretation of Section 10 of the said Act placed by the Apex Court in Shalini's case, applies with equal force to the guideline Nos.14 and 15 in Madhuri Patil's case. In view of this, we do not find any justification or propriety in the action of the Government of India in refusing to grant protection to the persons belonging to the caste other than "Koshti" or "Halba Koshti". We answer question No.(a) in para 55 above, holding that the persons belonging to Special Backward Category are entitled to the same protection as has been granted to the persons belonging to caste "Koshti" and "Halba Koshti".

6. This is not a case of any fraud or misrepresentation. The bonafide caste claim and related issues were pending since long. We are inclined to exercise discretion similar to extent the protection of service as provided in other similarly situated cases. We have to treat equals equally. No case of fraud or misrepresentation is found. The petitioner, however, requires to place on the service record his caste certificate for future purpose. Therefore, following conditions and order :

ORDER

(a) The petitioner is entitled for protection of service, however, not entitled for any further caste benefits on the basis of invalidated caste certificate, except a continuity of service.

(b) The privileges/benefits granted after 28.11.2000 on the basis of the earlier caste certificate that he belongs to 'Mahadeo Koli" Scheduled Tribe, the respondent/employer are at liberty to withdraw the said benefit/privilege and may restore the position as on 28.11.2000 depending upon the written service agreement.

(c) The petitioner to submit a fresh caste certificate to complete the formality of service record, at earliest, preferably within a period of nine months. Both the parties to cooperate accordingly. Parties to do the needful within a period of two months from the date of receipt of copy of this order for the same.

The petition is allowed accordingly. Rule is made absolute in above terms. No costs.

Petition allowed.