MAHEMOOD BAHADURSAB SAUDAGAR v. MANISHA RAMCHANDRA BORULKAR
Legal Reasoning
47-CP-251-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCONT. PETITION NO. 251 OF 2024 IN WP/12196/2023MAHEMOOD BAHADURSAB SAUDAGAR VERSUS MANISHA RAMCHANDRA BORULKAR .…Mr. T. M. Venjane, Advocate for Petitioner Mr. V. D. Hon, Senior Advocate a/w Mr V. B. Jadhav, Advocate forRespondent No.3 .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE:09.07.2024PER COURT :- 1.We have heard the learned Advocate for the Petitionerand the learned Senior Advocate along with Mr. V. B. Jadhav,Advocate for the management. 2. On 16.10.2023, since the Petitioner in Writ PetitionNo.12196 of 2023, had put forth an innocuous prayer, seekingpensionary benefits, we observed in our order below paragraph 6(a) and (b) as under:- 1 of 7 (( 2 ))47-CP-251-2024“(a)Respondent Nos. 5 and 6 shall ensure that all thedeficiencies are removed within 30 days from today andthe proposals are forwarded to Respondent No.8, within7 days thereafter. Respondent No.8 would then transmitthe papers to Respondent No.7 within 15 days(thereafter). (b)Respondent No.7 would carry out a scrutiny of theproposals and after clearing the same, the pensionarybenefits would be extended to the Petitioners withretrospective effect and with admissible interest, if any,to be paid within 45 days.”There is no dispute that without issuing notice to themanagement, we have passed this order on 16.10.2023, since aninnocuous prayer was put forth by the Petitioner. 3.The learned Senior Advocate has drawn our attention tothe affidavit-in-reply filed by Kusum Shankarrao Mahavarkar,Principal, Shri Balaji Junior College, Walandi, Taluka Deoni, DistrictLatur, along with annexures. He then draws our attention to aPresidential order, Chapter 2 – list of Scheduled Castes (theConstitution, Scheduled Castes) Order 1950, and more specificallypart X – Maharashtra, wherein the entry at Serial No.31 indicatesKhatik, Chakwa, Chikvi. He submits that these castes fall in the HinduKhatik Scheduled Tribe category. Since the Petitioner is a Muslim, hewould not fall within the Hindu Khatik, S.C. category. 2 of 7 (( 3 ))47-CP-251-20244. Our attention is then drawn to an order dated04.02.2022, passed by this Court in Writ Petition No. 7085 of 2021.The present Petitioner was at Serial No.10 in the said proceeding. Hemade a categoric statement that he would adhere to the caste validitycertificate of Musalman Khatik (318) i. e. Other Backward Class. 5.The learned Senior Advocate submits that the dilemmabefore the Principal is that the Petitioner was selected and appointedon a post reserved for S.C. category and he turned out to be a personfrom the O.B.C. category.6.The learned Advocate for the Petitioner submits that hisappointment has always been from the open category. 7.The learned Senior Advocate places reliance on the recordmade available along with the affidavit-in-reply by the Principal, toindicate that the employment exchange recommended the name ofthe Petitioner, because he belonged to the reserved category and anapproval granted to his appointment also indicates that he belongs tothe reserved category and the caste was shown as Khatik. There is nodispute that he is a Muslim. 3 of 7 (( 4 ))47-CP-251-20248.The proceeding before us is under the Contempt of CourtsAct. Either there is a contempt committed by the Respondents, forwhich, it has to be established that there was a willful, deliberate andintentional disobedience of the order of this Court with the intentionof overbearing the majesty of Court, or the Petition fails. 9.The learned Senior Counsel submits that if this Courtdirects the management, they would give their N.O.C. today itself. Hesubmits that the Petitioner was appointed on the claim of belongingto the Muslim Khatik and his appointment was on a reserved post. Hisproposal forwarded for seeking approval to his appointment, alsoindicates that he was considered for appointment on a post reservedfor the backward categories by mentioning his caste as Khatik. Suchproposal has been sanctioned by the competent authority, treatinghim from the Khatik category. Therefore, holding back of the N.O.C.by the management, cannot be said to be contemptuous. 10.In the above backdrop, what emerges from the recordbefore us is that the name of the Petitioner was recommended by theDistrict Employment Exchange. His name itself indicates that he 4 of 7 (( 5 ))47-CP-251-2024belongs to the Muslim religion. He had a Khatik certificate with him.The management appointed him on a post which was reserved for thebackward category. None of the documents before us indicate what isthat reserved category. The proposal forwarded by the Principal ofthe college, which is an admitted position, also indicates that thePetitioner was appointed to the post of Instructor, BuildingMaintenance. There is no mention in the said format that thePetitioner was appointed against a backward category. The notebelow the proposal mentions that any appointee from the backwardcategory would be treated from that category. One more documentbefore us at page 75 indicates that the Petitioner was said to beappointed on a reserved post and the caste was written as Khatik. Assuch, his service record merely mentions his induction in employmenttill his superannuation, as being a person who belongs to the Khatikcaste, his religion was Muslim. The Petitioner does have a validitycertificate of the O.B.C. category, under which the Muslim Khatikcaste is covered. It is not mentioned in any document that he wasappointed on a post which was reserved for the Scheduled Caste orTribe. 5 of 7
Decision
(( 6 ))47-CP-251-202411.The learned Advocate for the Petitioner submits that he iswilling to tender an affidavit undertaking that if in future, hisappointment or continuation in employment is called in question, andif this Court concludes that he was appointed on a post reserved forthe S.C. category and not “reserved category”, and if this Courtdirects, he would be willing to return the pensionary benefits. It is anadmitted position that the management has paid his entire retiralbenefits, save and except, the pension. 12.In view of the above and since a statement has been madebefore us by the Management that an N.O.C. can be given to thePetitioner if this Court makes such an observation, we record that thePetitioner be granted the N.O.C., so that the payment of pensionarybenefits would commence strictly in terms of the order passed by theWrit Court, dated 16.10.2023 and in pursuance to which thePetitioner’s entire proposal for pensionary benefits has been clearedeven by the Accountant General, Nagpur. Let such N.O.C. be grantedwithin 21 days from today. Let the undertaking be filed in this Courtand a copy be tendered to the management, within 30 days fromtoday. 6 of 7 (( 7 ))47-CP-251-202413.We conclude that the Management has not acted in amanner which could be termed as an act of disobedience of our order.Hence, this Contempt Petition is disposed off. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 7 of 7