1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3380 OF 2009 Paithan Taluka Gramin Vikas Sanstha, Navin Kavasan, Paithan, Tq. Paithan, Dist. Aurangabad Through its Secretary Shri. Ganesh s/o. Babanrao/Appasaheb Waghchaure, Age yrs., Occu. Secretary. ....Petitioner. Versus 1. The State of Maharashtra Through its, Social Welfare Department, Mantralaya, Mumbai 2. The Special District Social Welfare Officer, Aurangabad, Dist. Aurangabad. 3. The Divisional Welfare Officer, Aurangabad Division, Aurangabad. 4. Shri. Bhaskar Atmaram Salunke, Age 43 yrs., Occu. Service, (Suspended), 5. The Head Master, Prathamik Ashram Shala, Georai Marda, Tq. Paithan, Dist. Aurangabad. ....Respondents. Shri. V.D. Sapkal, Advocate for petitioner. Shri. T.S. Lodhe, A.G.P. for respondent Nos. 1 to 3. Shri. Sagar Killarkar, Advocate for respondent No. 4. Respondent No. 5 - Deleted as per Court's Order dt. 28/06/2010. CORAM : R.K. DESHPANDE, J. 2 DATE : 28th June 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 23rd of December, 2008 passed by the Divisional Social Welfare Officer, Aurangabad Division, Aurangabad, allowing the appeal No. 2/2008, filed by the respondent/employee and directing the respondent/employee to submit his case certificate as belonging to "Kunbi" OBC category to the Scrutiny Committee for verification and scrutiny. The Divisional Social Welfare Officer has recording a finding that the respondent belongs to "Kunbi" OBC category and hence, his appointment was from the said category. 2. Notices in this matter were issued on 21st July 2009. Notices are served. The learned A.G.P. appears for respondent Nos. 1 to 3. Shri. Killarikar, learned counsel appears for respondent No. 4. Shri. Sapkal, learned counsel for the petitioner seeks permission to delete the name of respondent No. 5. Hence, permission is granted. Amendment to be carried out forthwith. The learned counsels for the parties agree that the instant matter can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. The matter is heard finally. 3. By an order dated 28.4.2008 the services of the respondent No. 4 Shri. Bhaskar Salunke as an Assistant Teacher were terminated, stating 3 that he has secured an appointment to the post of Assistant Teacher, by showing that he belongs to "Kunbi" Maratha OBC category. It further states that the caste certificate produced by the petitioner is false, which is discovered in the inquiry conducted against him. It further states that as per the explanation furnished by the respondent No. 4, it seems that he belongs to open category and at the time of his appointment, he was overaged by three years and one month and in view of this, the Management has decided to terminate the services of the respondent No. 4 and accordingly, with effect from 30.4.2008 his services were terminated. 4. The respondent No. 4 filed an appeal No. 2/2008 before the Divisional Social Welfare Officer, Aurangabad Division, Aurangabad, challenging his termination. The same has been allowed by the said appellate authority on 23rd December 2008, holding that the respondent No. 4 belongs to "Kunbi" Maratha OBC category and he was accordingly appointed from the said category and therefor, the respondent No. 4 was directed to submit his caste certificate for verification and scrutiny by the competent authority within a period of three weeks. 5. Pending the decision of appeal, there was no interim order passed, continuing the services of the respondent No. 4. However, it seems that after the order was passed on 23rd of December 2008, the Head Master permitted the respondent No. 4 to join the duties 4 on17.1.2009 and accordingly, he is in service as an Assistant Teacher. 6. Shri. Sapkal, learned counsel for the petitioner submits that Writ Petition No. 1424/2009 filed by the respondent No. 4, challenging the order dated 23rd of December 2008, impugned in this petition, passed in appeal No. 2/2008, has been withdrawn by the respondent No. 4. According to him, the contention was raised in the said writ petition that the petitioner belongs to open category and as such, he was appointed from the said category. The said writ petition has been dismissed as withdrawn. He further submits that the appellate authority has not recorded any finding in respect of reasons given in the order of termination dated 28.4.2008 and has allowed the appeal without even setting aside the order of termination. He further submits that there is no order to reinstate the respondent No. 4 in service. The only direction is that the respondent No. 4 to submit his caste certificate to the Scrutiny Committee for verification of his caste claim as belonging to "Kunbi" OBC category. Hence, on these counts, according to him, the order of the Divisional Social Welfare Officer, Aurangabad Division, Aurangabad passed on 28th of December 2008, is liable to be quashed and set aside. 7. As against the aforesaid contention, Shri. Killarikar, learned counsel appearing for respondent No. 4, submits that although there is no specific finding in respect of ground of termination stated in the order dated 28.4.2008, it is merely technicality and the order of 5 termination stands set aside. He further submits that by necessary implication, the Divisional Social Welfare Officer was not convinced in respect of legality of the grounds of termination mentioned in the order dated 28.4.2008 and hence, no interference is called for in the order impugned in the petition. 8. It is a fact that there is no finding recorded by the Divisional Social Welfare Officer in his order dated 23.12.2008 in respect of the grounds of termination stated in the order of termination dated 28.4.2008. In the absence of any such finding, the impugned order cannot be sustained, on the ground that the appellate authority has failed to exercise its jurisdiction, of judging the validity and correctness of the reasons stated in the order. Even if it is assumed that order of termination stands impliedly set aside, there is no order of reinstatement in service passed. In view of this, it is also not in the interest of respondent No. 4 to maintain such order, which does not grant him reinstatement and continuity in service. The impugned order is, therefore, liable to be quashed and set aside on this sole ground. 9. In the result, the instant writ petition succeeds. The order dated 23rd December 2008 passed by the Divisional Social Welfare Officer, Aurangabad Division, Aurangabad, allowing the appeal No. 2/2008 is hereby quashed and set aside. The matter is remitted back to the 6 concerned authority to decide the appeal No. 2/2008 afresh in accordance with law, after recording the finding in respect of the correctness of the grounds of termination stated in the order of termination dated 28.4.2008. Rule is, thus, made absolute in the aforesaid terms. No order as to costs. 10. At this stage Shri. Killarikar, learned counsel for the respondent No. 4 submits that by virtue of order dated 23rd of December 2008, he was allowed to joint the duties and accordingly he joined the duties on 17.1.2009 and therefore, pending the decision of the appeal, he should be permitted to be continued in service. However, such a request cannot be accepted as there was no interim order passed pending the decision of the appeal and it was pursuant to the final order passed by the authority impugned in the present petition that the respondent No. 4 was reinstated in service. Hence, the said request is rejected. Shri. Killarikar, learned counsel for the respondent No. 4 submits that he is in service with effect from 17.1.2009 and his caste claim has been validated by the competent Scrutiny Committee as a candidate belonging to "Kunbi" Maratha OBC category and therefore, the protection granted by the impugned order should be extended for a period of four weeks from today so as to enable him to pursue his further remedy. However, it is not possible to accept such prayer. It is, therefore, rejected. [ R.K. DESHPANDE, J. ] ssc/wp3380.09