WRIT PETITION NO. 7753/2017

11th March 2020

Petitioner Counsel: Shri A.S. Jaiswal Shri S.S. Sharma
Respondent Counsel: Shri C.S. Kaptan Shri A.P. Kalmegh Shri M.A. Kadu

Cases Cited :

JUDGEMENT

N.W. Sambre, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the parties.

3. Pursuant to an advertisement issued by respondent No.1 on 2nd December, 1997, in daily Loksatta, inviting applications for the posts of Assistant Teachers, the petitioner submitted her application dated 4th December, 1997. In coloumn No.5 as to whether she belongs to any reserved category, based on the caste certificate issued by the Executive Magistrate, Buldhana certifying that the petitioner belongs to Halba Koshti (Scheduled Tribe Category) petitioner mentioned that she belongs to S.T. category. She also enclosed her Scheduled Tribe Caste Certificate issued by the competent Authority certifying that she belongs to S.T. Category along with her application form. An appointment order came to be issued in favour of the petitioner for the post of Teacher on 3rd July, 1998.

4. The Caste Scrutiny Committee considering the status of the petitioner as belonging to Halba Koshti issued a validity as that of belonging to Special Backward Class in favour of the petitioner vide certificate of validity dated 22nd November, 2002.

5. In the aforesaid background, respondent No.1 on 3rd July, 2013 and 23rd September, 2013 informed the petitioner to produce her validity belonging to S.T. Category candidate, in compliance with various directions of the State Government, failing which a threat of appropriate action was issued. The petitioner, accordingly, submitted her explanation to the said communications and informed that the advertisement and the application was never against a post meant for S.T. Category candidate. She also pointed out that the details of the appointment made in the year 1998 - 1999 shows that the petitioner was shown to be belonging to S.B.C. category.

6. In the aforesaid background, it is claimed by the petitioner that she cannot be mandated to produce the caste validity certificate as that of belonging to S.T. Category.

7. In the above background, respondent No.1 - Society issued a final notice of termination of service dated 20th November, 2017 thereby intimating the failure of the petitioner to produce tribe validity certificate as belonging to Scheduled Tribe, as such, it was informed that her services were to be terminated. As such, this petition challenges the above communication.

8. Shri Jaiswal, learned Senior Counsel appearing for the petitioner, would urge that the petitioner has never applied nor appointed from the S.T. Category as there was no such reservation prescribed at the time of advertising the posts. According to him, upon the caste certificate as was issued to the petitioner belonging to Scheduled Tribe was a genuine document and she cannot be blamed for the subsequent shift over to that of S.B.C. category candidate. Shri Jaiswal would urge that the disclosure of status of the petitioner as that of belonging to S.T. Category candidate is based on the caste certificate and that being so, she cannot be blamed for drawing any undeserving inference in the matter of appointment against a post reserved for S.T. Category. Shri Jaiswal while inviting attention of this Court to the appointment order, application form of the petitioner, submitted that the appointment of the petitioner was never from the reserved category. He would then urge that till date the petitioner has put into more than 23 years of service and in the aforesaid background, the threat of termination of service issued by respondent No.1 is irrational and, in fact, is illegal.

9. While countering the aforesaid submissions, Senior Counsel Shri Kaptan would urge that even in the advertisement the vacant posts were not categorized, however, in the application form the petitioner has disclosed her status as that of belonging to S.T. Category. As such, according to Shri Kaptan, respondent No.1 has rightly inferred her appointment from S.T. Category. According to him, the petitioner is duty-bound to produce the caste validity certificate as that of belonging to S.T. Category pursuant to the policy of the State Government based on the Supreme Court judgment. That being so, according to him, the failure on the part of the petitioner to produce validity certificate has rightly prompted respondent No.1 to issue the impugned communication.

10. The learned A.G.P. has adopted the line of arguments of Shri Kaptan, Senior Counsel appearing for the respondent No.1. The learned A.G.P. submits that there is huge backlog with respondent No.1 and that being so, respondent Nos.6 and 6-A were constrained to insist for filling up of backlog.

11. Considered rival submissions.

12. The perusal of the advertisement, the application form and the appointment order, which are relied on by the petitioner and respondent No.1 to demonstrate that in the advertisement there was no specific mention about the number of posts meant for the reserved category candidates. What was mentioned was only the applicability of the reservation. In the application form the petitioner has disclosed her status as that of Halba Koshti Scheduled Tribe and has also produced her caste certificate issued by the competent Authority. In the wake of aforesaid information furnished by the petitioner and her meritorious candidature, it appears that respondent No.1 has appointed petitioner without mentioning as to whether she has been appointed from S.T. Category or not.

13. The Education Authorities in the wake of the lawful appointment of the petitioner granted approval to her appointment.

14. It is after having noticed that there is backlog with respondent No.1 – Society, the respondent Nos.6 and 6-A insisted for the filling up of backlog and production of the validity certificates of the candidates who were appointed from the reserved category.

15. Accordingly, it appears that respondent No.1 has issued a communication to the petitioner to produce her validity certificate. The petitioner has made her stand clear in reply at page 26, Annexure VII that her appointment was from open category or at the most from S.B.C. category and she cannot be compelled to produce the validity certificate of S.T. Category or her services cannot be terminated.

16. There is one more facet to the matter and that is respondent No.1 has shown the appointment of the petitioner from S.B.C. Category as is apparent from the communication dated 30th November, 1998 issued to the respondent - Education Officer by the respondent No.1 - Society.

17. As such, respondent No.1 - Society has accepted that the appointment of the petitioner is from S.B.C. Category and not from the S.T. Category. Even otherwise, there is no mention as to whether the appointment of the petitioner is from S.T. Category as is apparent from the application and the appointment order issued in favour of the petitioner.

18. In the aforesaid background, conduct of the petitioner cannot be faulted with so as to infer that she has claimed appointment from the S.T. Category and has failed to produce validity certificate.

19. The petition needs to be allowed in terms of prayer clause (a) and (b). Rule is made absolute in the above terms.