High Court · 2025
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25.WP-842-2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWrit Petition No. 842 Of 2018Madhav s/o Yadavrao Shankhpale,Age : 54 years, Occupation-Service,R/o. Matoshri, Rajendra Nagar,Nanded. .. Petitioner Versus1.The State of MaharashtraThrough its Secretary,Public Works Department, Mantralaya, Mumbai-32.2.The Scheduled Tribe Certificate,Scrutiny Committee at Aurangabad. 3.The Scheduled Tribe CertificateScrutiny Committee at Pune. .. RespondentsWithCivil Application No.186 Of 2019inWrit Petition No. 842 Of 2018Anant s/o Dagadu Garde,Age : 62 years, Occupation-Business & Social-work,R/o. 407576, Chitra Talkies Road, Laxmi Niwas, Tq. & Dist. Ahmednagar. .. Applicant Versus1.Madhav s/o Yadavrao Shankhpale,Age : 54 years, Occupation-Service,R/o. Matoshri, Rajendra Nagar,Nanded.2.The State of MaharashtraThrough its Secretary,Public Works Department, Mantralaya, Mumbai-32.[1] 25.WP-842-2018.odt3.The Scheduled Tribe Certificate,Scrutiny Committee at Aurangabad. 4.The Scheduled Tribe CertificateScrutiny Committee at Pune. .. Respondents****** Mr. Sujeet G. Karlekar, Advocate for the Petitioner.* Mr. Ameya N. Sabnish, Advocate for Applicant in CA.* Mr. A.S. Shinde, Addl.GP for Respondents/State.***** CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ.. RESERVED ON : 24th FEBRUARY 2025 PRONOUNCED ON : 28th FEBRUARY 2025 J U D G M E N T (Per Shailesh P. Brahme, J.) :.Rule. Rule is made returnable forthwith. Heard both sides finally.2.The Petitioner is challenging order of termination passed by theRespondent No.1 vide Government Resolution dated 11.01.2018. He wasterminated due to order of invalidation issued by the Scrutiny Committeeand securing the appointment against Scheduled Tribe Category illegally.3.Petitioner’s tribe certificate Thakur Scheduled Tribe wasinvalidated by the Scrutiny Committee vide order dated 19.09.1992.Being aggrieved, he had filed Writ Petition No.2641/1992. It wasdismissed by the High Court on 05.04.2007. Against that, he hadapproached Supreme Court. He was permitted to withdraw the petitionwith liberty to file for review before High Court vide order dated[2]
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25.WP-842-2018.odt05.09.2008. In pursuance of that order, Application for review was filedbut no orders have been secured. 4.In the meantime, Petitioner was given adhoc promotion to the postof Executive Engineer vide Government Resolution dated 11.07.2002. Hewas reverted to the post of Assistant Engineer by Government Orderdated 11.07.2008. Thereafter by order dated 30.01.2009, he was issuedadhoc promotion on certain conditions. Thereafter he was terminated byGovernment Resolution dated 11.01.2018. He attained age ofsuperannuation in the year 2022. 5.Mr. S.G. Karlekar, learned Counsel for the Petitioner submits thatas impugned order is in blatant violation of principles of natural justice,petition is maintainable, despite having alternate remedy beforeMaharashtra Administrative Tribunal. Without extending anyopportunity of hearing, he was terminated by impugned order which isperverse. He would further submit that the Respondent No.1 even didnot bother to refer to Government Order dated 11.07.2008 by which hewas reverted in rank as a punishment due to invalidation of his tribecertificate. Having suffered punishment of reverting the in rank. It isillegal to again impose punishment of dismissal for the selfsame reason.Hence the action is against principles of double jeopardy. 6.Petitioner further submits that his services were protected byexecutive instructions dated 11.07.2008 and thereafter 30.01.2009.Overlooking the same, impugned order was issued which amounts toarbitrariness. It is submitted that judgment of High Court in the matterof Chairman and Managing Director FCI and Ors. Vs. Jagdish BalaramBahira and Ors., cannot be made applicable. He is relying on the[3] 25.WP-842-2018.odtjudgment of Radha Krishan Industries Vs. State of Himachal Pradeshand Others, (2021) 6 SCC 771 and M/s. Godrej Sara Lee Ltd. Vs. Exciseand Taxation Officer – Cum – Assessing Authority, AIR 2023 SC 781. 7.Per contra, learned AGP submits that impugned action was taken inpursuance of Section 10 of the Maharashtra Scheduled Castes, ScheduledTribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, OtherBackward Classes and Special Backward Category (Regulation ofIssuance and Verification Of) Caste Certificate Act, 2000. Once there wasinvalidation of tribe certificate and Petitioner is found to have usurpedthe post in question, his discharge from service is automatic and noquestion of extending any opportunity to him arises. It is submitted thatGovernment Orders dated 11.07.2008 and 30.01.2009 would not createany right or protect the services of the Petitioner. It is further contendedthat the impugned action taken against the Petitioner, is perfectly in-consonance with the law laid down in the Supreme Court in the matter ofChairman and Managing Director FCI and Ors. (supra). 8.Petitioner was employee of Public Work Department. He hadremedy to approach Maharashtra Administrative Tribunal against orderof termination. But learned Counsel for the Petitioner has persuaded usby relying on the judgment of the Supreme Court in the matter of RadhaKrishan Industries (supra), by referring to Paragraph No.27.3 that in caseof violation of principles of natural justice, it is permissible for the HighCourt to entertain Writ Petition directly. He would further place relianceon the judgment of M/s. Godrej Sara Lee Ltd. (supra). We find that thereis substance in the contention of the Petitioner. Considering his groundsof objection to impugned order of termination, we propose to examinethe matter on merits. [4] 25.WP-842-2018.odt9.Petitioner’s tribe certificate was invalidated by the ScrutinyCommittee and it was confirmed by High Court. Against thosejudgments, he had approached the Supreme Court. By order dated05.09.2008, the Supreme Court permitted him to withdraw SLP withliberty to approach High Court by filing review petition. Accordingly,Review Application Stamp No.16565/2009 was preferred. Learned AGPhas informed that no orders are passed and it is still pending. Due toorders of invalidation, Petitioner was found to be ineligible for the postof Assistant Engineer which was reserved for Scheduled Tribe Category.His entry in the service was on the basis of reservation. He wasterminated from the services by invoking powers under Section 10 of theAct. Respondent was empowered to discharge the Petitioner forthwithfrom the employment. For that, no opportunity of hearing is required tobe extended. Neither any inquiry is contemplated for discharging theservices. 10.Respondent No.1 has relied on the judgment of Managing DirectorFCI (supra). We have gone through paragraph Nos. 44 to 46 as well asconcluding part of paragraph no.57. Respondent no.1 is justified indismissing the Petitioner. He is guilty of fraud on the constitution and hehas deprived one legitimate deserving candidate belonging to ScheduledTribe Category. 11.When there is specific statutory provision of Section 10, noquestion of extending any further opportunity to the Petitioner arises.Law does not provide the extending of opportunity or conducting inquiryonce there is order of invalidation of tribe certificate. The Petitioner wasreduced in rank vide order dated 11.07.2008. By further order dated30.01.2009, he was again promoted temporarily. These orders are[5] 25.WP-842-2018.odtinconsequential. They would not protect the service of the Petitioner.After invalidation of the tribe certificate, he is liable to be dischargedfrom service. Any other penalty by executive orders like reduction in rankor deprivation of few service benefits is against statutory scheme andspirit of law laid down by the Supreme Court. Petitioner is taking shelterof these Government orders but the submission would run contrary tothe observations of the Supreme Court in the matter of Chairman andManaging Director FCI and Ors. (supra) which is as follows : “53.Administrative circulars and government resolutions are subservient to legislativemandate and cannot be contrary either to constitutional norms or statutory principles.Where a candidate has obtained an appointment to a post on the solemn basis thathe or she belongs to a designated caste, tribe or class for whom the post is meantand it is found upon verification by the Scrutiny Committee that the claim is false,the services of such an individual cannot be protected by taking recourse toadministrative circulars or resolutions. Protection of claims of a usurper is an act ofdeviance to the constitutional scheme as well as to statutory mandate. No governmentresolution or circular can override constitutional or statutory norms. The principlethat government is bound by its own circulars is well-settled but it cannot apply in asituation such as present. Protecting the services of a candidate who is found not tobelong to the community or tribe for whom the reservation is intended substantiallyencroaches upon legal rights of genuine members of the reserved communities whosejust entitlements are negated by the grant of a seat to an ineligible person. In such asituation where the rights of genuine members of reserved groups or communitiesare liable to be affected detrimentally, government circulars or resolutions cannotoperate to their detriment.” 12.Petitioner was found to have been promoted vide order dated11.07.2002 on adhoc basis. By Government Order dated 11.07.2008.adhoc promotion was revoked and he was reverted to his original post.This is not by way of any punishment for invalidation of the tribecertificate. Only punishment contemplated by Section 10 of the Act, isthe dismissal from the service. No leverage can be read into thestatutory provision. The reduction of the Petitioner is not void andtherefore no benefit can be given to him to escape dismissal. We,therefore, disapprove the submission of the Petitioner that order of[6] 25.WP-842-2018.odttermination would violate the principles of double jeopardy. We arefortified in our finding by referring to above observations of theSupreme Court in paragraph no.53. 13.It transpires from record that interim orders were passed on23.01.2018. But that was not protection against order of termination. Itwas only prohibition issued to the Respondent from filling in the post ofthe Petitioner and recovering anything from him. We do not accept thesubmission of the Petitioner that there was protection of his servicesafter order of invalidation either by High Court or by Government Orderdated 11.07.2018.14.There is no legal sanctity to the Government Order dated11.07.2008. Thereafter there was no need to mention that order in theGovernment Resolution dated 11.07.2018 which is under challenge.Respondent is justified in dismissing the Petitioner from the services.Impugned action is perfectly in accordance with law. We do not findmerit in the petition. 15.Writ Petition is dismissed. Rule is discharged. 16.Civil Application stands disposed of. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGEnajeeb..[7]