AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8090 OF 2007 ALONG WITH CIVIL APPLICATION NO.2799 OF 2007 AND CIVIL APPLICATION NO.2277 OF 2009 IN WRIT PETITION NO.8090 OF 2007 Vandana D/o. Bharat Kauthalikar, R/o. 157/E, Railway Line, Solapur-1, Dist. Solapur. ) ) ) ... Petitioner Versus 1. State of Maharashtra through the Secretary, Tribal Development Department, Mantralaya, Mumbai – 400 032. ) ) ) ) 2. Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune, through its Vice Chairman, having its office at 28, Queen's Garden, Pune – 1. ) ) ) ) ) 3. Establishment Officer, Maharashtra State Electricity Board, General Administration Department, Dharavi Road, Matunga, Mumbai – 400 019. ) ) ) ) ) 4. Suptd. Engineer (Solapur Circle Office), M.S.E.B., Solapur. ) ) ... Respondents Mr. S.M. Kulkarni for the petitioner. AJN 2 Mr. C.R. Sonawane, A.G.P. for the State. Ms. A.R. Baxi for respondent 3. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE ORDER IS RESERVED : 15TH SEPTEMBER, 2009. DATE ON WHICH THE ORDER IS PRONOUNCED: 14TH OCTOBER, 2009. P.C. . :- 1. The petitioner has challenged order dated 8/8/2007 passed by the Scheduled Tribe Scrutiny Committee, Pune invalidating her claim that she belongs to Mahadeo Koli Scheduled Tribe. This petition was heard by the Division Bench of this court (D.K. Deshmukh and V.M. Kanade, JJ.) on 28/1/2008. It was urged before the Division Bench that the petitioner has come into possession of a document relating to her grandfather which shows that in the jail record of Central Prison, Gulbarga, her grandfather's caste is recorded as Koli Mahadeo. Learned counsel for the petitioner urged that as this document is recovered subsequently, the matter may be remanded to the Caste AJN 3 Scrutiny Committee. Both the learned judges were of the opinion that no case was made out for remanding the matter to the Caste Scrutiny Committee. It was observed that the petitioner has not produced any document to show that her grandfather was at any point of time residing at Gulbarga or in nearby villages; that she has not produced any documentary evidence to prove that the person to whom the document relates can be identified as her grandfather, that there was no averment made in the petition as to what efforts were made by the petitioner to secure this document before the enquiry was held by the Caste Scrutiny Committee and, therefore, there was no case made out by the petitioner that with due diligence, the document could not have been produced before the Caste Scrutiny Committee. 2. It was then urged by learned counsel for the petitioner that though the petitioner's caste claim has been found to be invalid, her services need to be protected. Reliance was placed on judgments of the AJN 4 Supreme Court and of this court and some Government Resolutions (for short, “G.R.”). Justice D.K. Deshmukh was of the opinion that in view of the clear stipulation in the appointment order that the appointment of the petitioner was subject to her claim that she belongs to Mahadeo Koli, Scheduled Tribe being found valid, the petitioner having accepted that appointment cannot now turn around and claim that though she has not been found to be belonging to Mahadeo Koli, Scheduled Tribe, her services should be protected. Justice V.M. Kanade was, however, of the view that the observation of the Supreme Court in Punjab National Bank v. Vilas, 2007 (3) Mh.L.J. 805 indicates that the issue as to whether the protection should be given to an employee whose caste claim is invalidated or not, has not been finally concluded by the Supreme Court. Justice V.M. Kanade observed that in Punjab National Bank's case (supra), the Supreme Court has considered the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes Other Backward Classes AJN 5 and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act, 2001 (for short, “the said Act”) and, yet, it has held that those employees who were appointed prior to the judgment in State of Maharashtra v. Milind & Ors., 2001 (1) Mh.L.J. (S.C.) 1 were entitled to get protection. In view of this difference of opinion, learned judges directed that the papers be produced before the Hon'ble the Chief Justice for appropriate orders. Hon'ble the Chief Justice Shri Swatanter Kumar placed this matter before the Full Bench (S.B. Mhase, A.P. Deshpande and A.S.Oka, JJJ.). The questions which the Full Bench was required to consider were as follows: “I. Whether an employee is entitled to protection of his employment in view of Government Resolution dated 15th June 1995 even after his caste claim on the basis of which he was appointed is found to be invalid? II. Whether employment of such an employee cna be protected in the light of the provisions of Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jati), Nomadic Tribes, AJN 6 Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act, 2000?” 3. The Full Bench was of the view that both the questions were already answered by another Full Bench (S.B. Mhase, A.P. Deshpande and B.P. Varale, JJJ.) and the said Full Bench has held as under: “13. Having regard to the legal position that emerges from the above referred judgments, we record the following conclusions and answer the question framed: (1) The observations/directions issued by the Supreme Court in para 36 of the judgment in the case of State V/s. Milind reported in 2001(1) Mah.L.J. SC 1 is not the `law declared by the Supreme Court' under Article 141 of the Constitution of India. (2) The said observations/directions are issued in exercise of powers under Article 142 of the Constitution. (3) The said observations/directions have no application to the cases relating to appointments and are restricted to the cases relating to admissions. AJN 7 (4) The protection, if any, to be granted in the facts and circumstances of the case would depend upon the exercise of discretion by the Supreme Court under Article 142 of the Constitution. As the powers under Article 142 are not available to the High Court no protection can be granted by this Court even in cases relating to admissions. 14. In the result, we hold that the judgment of the Division Bench in the case of Union of India v. Deepak Y. Gotefode, 2008(1) Mh.L.J. 790 lays down correct position of law and we further hold, with due respect to the learned Judges, that the judgment in the case of Prashant Haribhau Khawas v. State of Maharashtra & Ors. 2008(2) Mh.L.J. 322 does not lay down the correct law. The reference is answered accordingly. The writ petitions be placed before the respective Division Benches for hearing and final disposal in the light of this reference Judgment.”\ 4. In view of this, the Full Bench (S.B. Mhase, A.P. Deshpande and A.S. Oka, JJJ.) on 18/7/2009 answered both the questions referred to it in the negative. The Full Bench directed that the petition be placed before the appropriate bench so that it can be decided in accordance with law laid down by the Full Bench (S.B. Mhase, A.P. AJN 8 Deshpande and B.P. Varale, JJJ.) in Writ Petition No.4524 of 2008. That is how the petition is placed before us. 5. In our opinion, the impugned order merits no interference. It is a well reasoned order. The Scrutiny Committee has rightly held that the petitioner has not been able to prove that she belongs to Mahadeo Koli, Scheduled Tribe. In fact, learned counsel for the petitioner did not advance any arguments on the merits. In view of the enunciation of law by the Full Bench vide its judgment dated 18/7/2009, it is clear that the petitioner is not entitled to protection of her employment pursuant to the G.R. dated 15/6/1995 after her caste claim on the basis of which she was appointed is found to be invalid and her employment cannot be protected in the light of the provisions of the said Act. It is, therefore, not possible for us to direct that the petitioner's services should be protected. 6. On 25/8/2009, counsel for the petitioner on AJN 9 instructions from Bharat Shivaji Kauthalikar, the father of the petitioner, made a statement that the Government is likely to extend the benefit of protection of services to the petitioner pursuant to the Government Resolution dated 15/6/1995. He submitted that if the statement made by him is found to be incorrect, he has instructions not to press the petition. In view of the clear finding of the Full Bench which we have quoted hereinabove based on the Supreme Court judgments, the Government could not have extended the protection of services to the petitioner pursuant to the G.R. dated 15/6/1995. However, in the interest of justice, we adjourned the petition to 15/9/2009. On 15/9/2009, learned counsel submitted that his information was incorrect and, therefore, he does not wish to press the petition. In view of this statement, the petition is disposed of as not pressed. 7. All connected civil applications are also disposed of. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]