RAVINDRA v. GHUGE & R.M. JOSHI, JJ. DATE
Legal Reasoning
*1* 905wp3152o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3152 OF 2024Anjali Vithalrao Jukte,Age : 25 years, Occupation : Education,R/o Bhagyalakshmi Nagar, Vasmat Road,Parbhani, Tq. And Dist. Parbhani....PETITIONER-VERSUS-1.State of Maharashtra.Through it’s Principal Secretary,Home Department, Mantralaya,Mumbai-32.2.Directorate of Forensic Science,Maharashtra State, Hans Bhugra Marg,Vidya Nagari Kalina, Mumbai-431606.Through it’s Directgor.3.Maharashtra Public Service Commission,5th 7th and 8th Floors, Kooperage TelephoneNigam Building, Maharshi Karve Marg,Mumbai-400021.Through it’s Secretary.4.The Scheduled Tribe Certificate ScrutinyCommittee, Aurangabad.Through it’s Member Secretary....RESPONDENTS…Shri Mahesh Deshmukh, Advocate i/by Shri Umesh B. Gite,Advocate for the Petitioner.Shri S.K. Tambe, AGP for Respondent Nos.1, 2 and 4/State.Shri S.J. Salgare, Advocate for Respondent No.3/MPSC.… *2* 905wp3152o24 CORAM : RAVINDRA V. GHUGE & R.M. JOSHI, JJ. DATE :- 21st March, 2024ORAL JUDGMENT ( Per Ravindra V. Ghuge, J. ):- 1.Leave to add the Competent Validity Committee asRespondent No. 4. Addition be carried out forthwith. The learnedAGP causes an appearance on behalf of the added Respondent.2.Rule. Rule made returnable forthwith and heardfinally by the consent of the parties.3.The Petitioner has put forth prayer clause A asunder:-“A)Issue Writ of Mandamus and or otherappropriate Writ or Order in the like naturethereby direct the Respondent No.1- HomeDepartment, Maharashtra State, Mumbai toforthwith issue Provisional Order ofAppointment as "Assistant Chemical Analyzer,Group B (Gazetted)" in favor of petitioner fromSchedule Tribe Category without insisting forTribe Validity Certificate.”4.The learned Advocate for the Petitioner submits thatthe Petitioner belongs to the “Mannervarlu”, Scheduled Tribe
Legal Reasoning
*3* 905wp3152o24category. She has a Tribe Certificate. Her proposal for seeking avalidity certificate is pending. She relies upon the judgmentdelivered by this Court dated 25.08.2011 in Writ PetitionNo.2136/2011 (Shrikant Chandrakant Saindane vs. The Stateof Maharashtra and others) and group of cases, wherein, thisCourt has concluded that a person from the reserved categorycannot be denied an appointment order only because his claim ispending. We deem it apposite to reproduce paragraph Nos.15 to18 of the judgment in Shrikant Chandrakant Saindane (supra)hereunder:-“15.No doubt, that the purpose of the said conditionis with a noble aim of ensuring that thereserved seat should be occupied by acandidate belonging to that particular reservedcategory and no candidate or person, notbelonging to reserved category, should usurpthe said post. However, at the same time, theCourt cannot ignore the fact that it is not in thehands of the candidates to obtain the certificatebefore they appear for interview or apply for aparticular post. If the the impugned conditionis upheld, an eventuality cannot be ruled outthat a candidate will have to wait till hereaches the maximum age to apply for the postand is given the validity certificate after hebecomes age bar. In such a situation, acandidate belonging to a particular backwardclass, would be deprived of availing thebenefits, though, in law, he is entitled to. 16.It is a settled principle of law that a partycannot be asked to do an impossible act. *4* 905wp3152o24Reference, in this respect, can be made to ajudgment of the Apex Court in the matter ofMohammed Gazi vs. State of M.P. and others,reported in 2000 (3) SCALE 6. 17.In any case, if any candidate's claim issubsequently invalidated, the law has takencare for the same. Sub-section (1) of Section 10of the said Act provides that: 10 Benefits secured on the basis of falseCaste Certificate to be withdrawn.- (1) Whoever not being a personbelonging to any of the Scheduled Castes,Scheduled Tribes, De-notified Tribes, (VimuktaJatis), Nomadic Tribes, Other BackwardClasses or Special Backward Category, securesadmission in any educational institutionagainst a seat reserved for such Castes, Tribesor Classes, or secures any appointment in theGovernment local authority or in any otherCompany or Corporation, owned or controlledby the Government or in any Government aidedinstitution or Co-operative Society against apost reserved for such Castes, Tribes orClasses by producing a false Caste Certificateshall, on cancellation of the Caste Certificateby the Scrutiny Committee, be liable to bedebarred from the concerned educationalinstitution, or as the case may be, dischargedfrom the said employment forthwith and anyother benefits enjoyed or derived by virtue ofsuch admission or appointment by such personas aforesaid shall be withdrawn forthwith. If an ineligible candidate, who isappointed on the post reserved for reservedcategory, is found to be not belonging to thatcategory and his caste claim is invalidated, hisservices will be liable to be terminatedforthwith and he shall stand discharged fromthe services.
Decision
*5* 905wp3152o2418. In that view of the matter, we find that the saidcondition is totally unreasonable and as such,liable to be struck off. Hence the followingorder:- (i) We allow the petitions and hold that conditionno.7, in Government Resolution dated 5thNovember 2009, is unreasonable and,therefore, is struck off. (ii) Since it is not in dispute, that all the petitionersare duly selected against a post reserved forparticular reserved category, we direct theRespondent-employers to forthwith issueprovisional appointment orders in favour of thepetitioners, which shall be subject to validationof their caste / tribe claims. The same shall bedone within a period of one month from today. (iii) The respective Respondent- ScrutinyCommittees are directed to decide claim of thepetitioners as expeditiously as possible and inany case, within a period of six months fromtoday. (iv) It is directed that no coercive action shall betaken against the petitioners on the ground ofnon submission of validity certificate till theRespondent-Committees decide claims of thepetitioners. (v) It is further directed that in the event any orderadverse to the interest of the petitioners ispassed by the Respondent-Committees, thesame shall not be given effect for a period offour weeks from the date of receipt ofcommunication by the petitioners.”5.The learned AGP has strenuously opposed thispetition and submits that it has become a modus operandi forsuch candidates to seek an appointment under the orders of theHigh Court. Once they receive the appointment order, they do not *6* 905wp3152o24cooperate with the Committee for the expeditious disposal of thepending proceedings. There are instances of such candidates havespent a complete service life time without a validity certificateand at the stroke of retirement, they approach this Court forseeking retiral benefits. He cites the judgment delivered by theHonourable Supreme Court in Chairman and ManagingDirector, Food Corporation of India and others Vs. JagdishBalaram Bahira and others, 2017 AIR SC 3271.6.The learned AGP further submits that the Committeehas already crossed the stage of the vigilance enquiry. The reportof the Vigilance Cell is received and the copy is served on thePetitioner. The Petitioner has tendered her reply and also soughtadditional time for filing an additional reply to the vigilance cellreport. He furthers adds that the Petitioner has voluntarily takenaway the original tribe certificate from the Committee, whichwas a part of the proceedings, and has, thereafter, disappeared.She should re-tender the original tribe certificate within ten daysand render fullest cooperation to the Committee.7.This is a Court of equity and the equities will have tobe balanced while granting relief to the Petitioner. After a *7* 905wp3152o24thoughtful consideration over the matter and taking a holisticview, this Writ Petition is disposed off with the followingdirections:-(a)The Petitioner shall tender the original tribecertificate to the Competent Committee, on or before 01.04.2024.An acknowledgment of having received the original certificateshall be issued by the Committee to the Petitioner. (b)The Petitioner has tendered her e-mail address [email protected]. She has also tendered her Cell Phonenumber as 7387640512 and agrees to receive communications orcorrespondence from the Committee and enter intocorrespondence with the Committee through her e-mail addressand/or the whatsapp mode. (c)The Committee shall decide the claim of thePetitioner, on or before 30.09.2024.(d)The Petitioner would render wholeheartedcooperation to the Committee and would refrain from seekingadjournments on unreasonable and trivial grounds. For everyadjournment, she will have to put forth a justifiable reasonthrough email/Whatsapp/physical mode.(e)Subject to the above conditions, Respondent No.1 *8* 905wp3152o24shall issue a provisional appointment order on probation to thePetitioner as a Assistant Chemical Analyzer, Group B (Gazetted),on or before 15.04.2024. (f)The Petitioner’s service would not be confirmedand/or an order of confirmation would not be issued, until thePetitioner secures a validity certificate.(g) The probation appointment order would not bedenied only for the reason that the Petitioner’s claim is pending. 8.Rule is made absolute in the above terms.9.No order as to costs. kps ( R.M. JOSHI, J. ) ( RAVINDRA V. GHUGE, J. )