- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1658 OF 2006 WITH WRIT PETITION NO.1659 OF 2006 WITH WRIT PETITION NO.1660 OF 2006 WRIT PETITION NO.1658 OF 2006 WRIT PETITION NO.1658 OF 2006 WRIT PETITION NO.1658 OF 2006 Manoj Prabhakar Lohar, ) Aged 33 years, residing at 38, ) Amboli, Andheri (E), ) Mumbai - 400 058. ).. Petitioner Vs. 1. State of Maharashtra, ) through its Secretary, ) Home Department, ) Mantralaya, ) Mumbai - 400 032. ) 2. Secretary/Chairman, ) Maharashtra Public Service ) Commission, having its ) Office at Bank of India ) Bldg., 3rd Floor, D.N.Road,) Fort, Mumbai - 400 023. ).. Respondents -- S/Shri S.G.Aney, Senior Counsel, with Samir A.Vaidya, advocate, i/b R.K.Mendadkar, advocate for the petitioner. Shri Niranjan Pandit, AGP for respondent No.1. S/Shri P.K.Dhakephalkar, Senior Counsel, with S.R.Ganbavale, advocate, for the respondent No.2. -- - 2 - WITH WITH WITH WRIT PETITION NO.1659 OF 2006 WRIT PETITION NO.1659 OF 2006 WRIT PETITION NO.1659 OF 2006 Nitin Prabhakar Lohar, ) Aged 31 years, residing at 38, ) Amboli, Andheri (E), ) Mumbai - 400 058. ).. Petitioner Vs. 1. State of Maharashtra, ) through its Secretary, ) Home Department, ) Mantralaya, ) Mumbai - 400 032. ) 2. Secretary/Chairman, ) Maharashtra Public Service ) Commission, having its ) Office at Bank of India ) Bldg., 3rd Floor, D.N.Road,) Fort, Mumbai - 400 023. ).. Respondents -- S/Shri R.M.Agarwal with Samir A.Vaidya i/b R.K.Mendadkar, advocate for the petitioner. Shri Niranjan Pandit, AGP for respondent No.1. S/Shri P.K.Dhakephalkar, Senior Counsel, with S.R.Ganbavale, advocate, for the respondent No.2. -- WITH WITH WITH WRIT PETITION NO.1660 OF 2006 WRIT PETITION NO.1660 OF 2006 WRIT PETITION NO.1660 OF 2006 Sunil Prabhakar Lohar, ) Aged 35 years, residing at 38, ) Amboli, Andheri (E), ) Mumbai - 400 058. ).. Petitioner - 3 - Vs. 1. State of Maharashtra, ) through its Secretary, ) Home Department, ) Mantralaya, ) Mumbai - 400 032. ) 2. Secretary/Chairman, ) Maharashtra Public Service ) Commission, having its ) Office at Bank of India ) Bldg., 3rd Floor, D.N.Road,) Fort, Mumbai - 400 023. ).. Respondents -- S/Shri S.U.Kamdar with Samir A.Vaidya i/b R.K.Mendadkar, advocate for the petitioner. Shri Niranjan Pandit, AGP for respondent No.1. S/Shri P.K.Dhakephalkar, Senior Counsel, with S.R.Ganbavale, advocate, for the respondent No.2. -- CORAM : R.M.S.KHANDEPARKAR & D.G.KARNIK, JJ DATED : 10TH AUGUST, 2007 JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) 1. As common questions of law and facts arise in all these three petitions, they were heard together and are being disposed of by this common judgment. 2. In all these petitions, the petitioners are challenging the order passed by the Maharashtra Public - 4 - Service Commission on 16th January, 2006 revoking recommendation for appointments of the petitioners, further the order dated 24th January, 2006 passed by the State Government terminating the services of the petitioners and the common judgment and order dated 17th April, 2006 passed by the Maharashtra Administrative Tribunal whereby the said orders have been confirmed while dismissing the appeals filed by the petitioners against the said orders. 3. In all these three petitions, the petitioners claim to be belonging to Gadi Lohar Nomadic Tribe. As regards the petitioner Manoj is concerned, it is his case that he was issued caste certificate on 26th June, 1992 by the competent authority. However, he came to be selected through Maharashtra Public Service Commission, hereinafter called as "the MPSC," in the year 1995 for the post of Class-II Officer from open category and was appointed as the Government Labour Officer at Thane. Thereafter, he was selected by the MPSC in the year 1997-98 for the post of Block Development Officer, Class-I, from open category. Subsequently, as a result of representation made by one Mahesh Bhaskar Patil who was selected as Deputy Superintendent of Police, the MPSC revised the merit list and the petitioner came to be selected and - 5 - recommended for the post of Deputy Superintendent of Police/Assistant Commissioner of Police. After selection, and on 18th November, 1998, his caste certificate was referred to Caste Scrutiny Committee for its verification, and the said Committee issued caste validity certificate in favour of the petitioners on 30th July, 1999 after verifying the caste claim of the petitioners. Consequently, the petitioner Manoj came to be appointed as Dy.Superintendent of Police/ Assistant Commissioner of Police by G.R.dated 12th October, 1999. 4. As far as the petitioner Nitin is concerned, it is his case that he was selected through the MPSC for the post of Sales Tax Inspector, Class-II, in the year 1995 from open category. After working as Sales Tax Inspector at Mumbai for two years, in 1996, he came to be selected by MPSC for the post of Class-I officer in Maharashtra Finance and Accounts Service from open category, which he joined in the year 1998. Meanwhile, in the year 1997 he came to be selected by MPSC to the post of Deputy Superintendent of Police/Assistant Commissioner of Police by MPSC in open category. Though he was selected for appointment in open category for the post of Dy.SP on 24th February, 1998, the government referred the caste - 6 - certificate of the petitioner to the Caste Scrutiny Committee for its verification. The Caste Scrutiny Committee on verification of the caste claim of the petitioner issued caste validity certificate on 30th July, 1999 to the petitioner. Thereafter, under G.R.dated 12th October, 1999 the petitioner came to be appointed as Dy.SP/Asstt.Commissioner of Police. 5. As regards the petitioner Sunil is concerned, it is his case that caste certificate issued to him on 29th June, 1985 by the Executive Magistrate, Beed was produced for verification by the Caste Scrutiny Committee on 21st August, 1991 and after following the procedure of inquiry, the said Committee issued the caste validity certificate to the petitioner on 17th June, 1993. In 1995 he came to be selected by MPSC for the post of Sales Tax Inspector. In 1997-98 he came to be selected by MPSC for the post of Tahsildar, Class-I, from open category. However, relying upon the representation made by one Mahesh Bhaskar Patil who was selected as Dy.SP, the MPSC revised the merit list. The petitioner made a representation on 24th September, 1998 pointing out that the reservation for ladies in selection process had come to 40% in open category, which had exceeded the prescribed percentage of 30%, on account of which the petitioner was - 7 - deprived of being selected for the post of Dy.SP. On account of failure on the part of the Committee to take any decision in the matter, the petitioner filed Writ Petition No.6220 of 1999 wherein by order dated 17th July, 2000, the government was directed to take appropriate decision within eight weeks. Accordingly, in pursuance of government’s decision, recommendation for appointment of the petitioner in the post of Tahsildar was withdrawn, and instead was recommended for the post of Dy.SP. Consequently the petitioner came to be appointed as Dy.SP on 20th July, 2001. 6. Pursuant to the complaint made by one Eknath Khadse, MLA, the caste certificates of all the three petitioners were referred for verification to the caste scrutiny committee at Pune. After necessary inquiry into the matter, the Caste Scrutiny Committee held that once the Committee having issued caste validity certificate after necessary scrutiny and inquiry, it is not open for the Caste Scrutiny Committee to review its earlier order in view of Section 7(2) of the Maharashtra Schedule Castes, Schedule Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, - 8 - hereinafter called as "the Caste Certificate Act", and therefore, rejected the reference for verification by its order dated 10th June, 2005. The said order was sought to be challenged by said Shri Eknath Khadse in the Writ Petition No.6146 of 2005 which came to be disposed of by this Court by its order dated 15th September, 2005 observing that in the absence of any power of review being conferred upon the caste verification committee, it would not be open to the committee to review its earlier order. 7. On the basis of the complaint filed by Shri Khadse, MLA, show cause notices came to be issued to the petitioners Sunil and Manoj on 21st October, 2005 and to the petitioner Nitin on 26th October, 2005. Explanation was called for from the petitioners as to why recommendations made for their appointments should not be withdrawn. The petitioners preferred Writ Petitions Nos.2660, 2661 and 2662 of 2005 challenging the legality and validity of the show cause notices which came to be rejected by order dated 21st November, 2005 with the liberty to the petitioners to approach the Maharashtra Administrative Tribunal, Mumbai, for necessary reliefs and keeping all the issues open. Accordingly, the petitioners filed necessary applications before the Maharashtra - 9 - Administrative Tribunal, Mumbai, being O.A.Nos.983, 984 and 985 of 2005. The Tribunal under order dated 28th November, 2005 directed the petitioners to file proper application for inspection of certain documents to the MPSC and the latter was directed to allow inspection of such documents. The said order was challenged by the petitioners in Writ Petitions No.3033, 3034 and 3035 of 2005 before the High Court. Pursuant to the assurances given by the learned counsel for the MPSC that the inspection of the relevant documents would be given to the petitioners, the said petitions were disposed of by order dated 22nd December, 2005. The petitioners submitted their application to MPSC in the month of December, 2005 for inspection of the documents. The documents given for inspection were perused by the petitioners, and on perusal thereof, additional and final reply was filed by the petitioners to the show cause notices. The MPSC by its order dated 16th January, 2006 communicated its decision to the petitioners whereby the recommendations made on selection of the petitioners were sought to be withdrawn. The said order was challenged by the petitioners by filing O.A.Nos.52, 53 and 54 of 2006 before the Tribunal on various grounds. However, as the Tribunal did not accede to the request of the petitioners, the present - 10 - petitions have been filed. 8. At the outset, one of the points which is sought to be raised by the petitioners and needs to be rejected in limini, relates to the contention about the power of MPSC to withdraw its recommendations once made. The issue is no more res integra and is well settled by the decision of the Apex Court in Dr.M.C.Bindal’s case (supra) Dr.M.C.Bindal’s case (supra) Dr.M.C.Bindal’s case (supra). It is the duty of Public Service Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement and in that regard the Commission is entitled to revise its earlier decision if on re-verification it finds that the candidates sought to be selected do not satisfy the requisite qualification or that the recommendation has been done by flouting the rules of procedure and in total disregard to the statutory provisions or by playing a fraud upon the Commission. Undoubtedly, such power has to be exercised in accordance with the procedure prescribed for the same and without violating the constitutional mandates and statutory provisions. 9. It is not in dispute that the petitioners Manoj and Nitin were appointed in open category, - 11 - whereas the petitioner Sunil was appointed in reserved category. It is also not in dispute that all the three petitioners submitted their caste certificates as belonging to Gadi Lohar N.T.(B). It is also not in dispute that the caste claim of the petitioners was subjected to verification by the competent authority and the said authority had confirmed the caste claim of the petitioners. Such confirmation has not been challenged by the respondents before the competent authority. 10. It is the case of the petitioners that Manoj and Nitin having been selected in open category for their appointment as the Deputy Superintendent of Police, there is absolutely no justification for termination of their services or withdrawal of their recommendations on the ground that their caste certificates were bogus. Even otherwise, it is well settled law that a candidate even though is selected in the open category in accordance with the provisions of law, he is always entitled to lay claim to a reserved post, and therefore, no fault could have been found with the appointment of the petitioners and that there was no case for withdrawal of the recommendations regarding the selection of the petitioners. As far as the caste claim of the - 12 - petitioners is concerned, it is their case that once their caste claim is verified and confirmed by Caste Scrutiny Committee pursuant to legal proceedings in that regard and such decisions have attained finality, it is not open to the respondent to ignore the same or to arrive at totally different conclusions or to dispute the validity of the caste claim of the petitioners. It is their further case that it is not open to the respondents to order re-validation or re-verification of the caste claim for fanciful reasons. Once the scrutiny committee has confirmed the caste claim of the petitioners, it is not open to any other authorities to order re-verification of the caste claim of the petitioners. In any case, merely because years back, the petitioners’ father’s caste certificate disclosed a different caste that itself cannot be a ground to cancel the appointment of the petitioners and that too without proper inquiry and without giving them fair opportunity to meet the case of the respondents. It is their further case that the order of termination of their service and that of withdrawal of recommendations are sought to be justified on the basis of the materials which were never disclosed to the petitioners, though were produced for the perusal of the Tribunal and the orders of the MPSC and Tribunal are based on such - 13 - undisclosed and unproved materials. 11. It is the contention on behalf of the respondents that the father of the petitioners sought entry in the government employment claiming to be belonging to Lohar which is Other Backward Class (O.B.C.). It is their contention that since the father of the petitioners claimed to be belonging to Lohar Caste, the petitioners herein by producing certificate as belonging to Gadi Lohar N.T. (B), knowing well that the father had obtained entry in the government service as belonging to Lohar (O.B.C.), have played a fraud and have misled the concerned authority and have secured the entry in the public service by misleading the concerned authority, and in suppression of real facts about their caste. According to the respondents, necessary notice in that regard was issued and accordingly action has been taken in consonance with the provisions of law. According to the respondents, show cause notice was validly issued and it contained necessary materials to enable the petitioners to understand the allegations and in the absence of proper and satisfactory explanation given by the petitioners, no fault could have been found with the impugned judgment and order. It is their further case that the contents of internal - 14 - inquiry are confidential documents and cannot be revealed to the petitioners. The action of recommendation for withdrawal of names of the petitioners on the part of the MPSC is sought to be justified on four grounds, namely, that the internal inquiry which was conducted by the MPSC revealed that the cast certificates of the petitioners were invalidated as the caste certificates were not issued by the Executive Magistrate of home town of the petitioners. Secondly the petitioners had not availed benefits of reservation at the time of their appearance in the earlier examination held by the MPSC. Thirdly the caste certificate of the father of the petitioners discloses that he belonged to Lohar Caste, and fourthly the internal inquiry revealed that the selection of the petitioners was unmerited and was based on manipulation of examination and selection records. 12. The order dated 16th January, 2006 came to be passed by MPSC recommending withdrawal of the names of the petitioners essentially on four grounds based on which the show cause notices were issued in October, 2005 and those grounds were stated to have been revealed from the internal inquiry. Firstly that the petitioners falsely claimed to be belonging to Gadi - 15 - Lohar N.T.(B) tribe and in collusion with the officers of the MPSC and adopting mal-practices in the process of examination and selection, got themselves selected and recommended for the posts for which they came to be appointed, ignoring meritorious candidates for such posts. Secondly all the three petitioners, in connivance with the officers of the MPSC, were involved in the mal-practices in the examination conducted by MPSC in order to enable them to be selected and recommended to the posts of Dy.Superintendent of Police. Thirdly in order to get the post of Dy.Superintendent of Police, various manipulations were made in the examination process as well as the records regarding result of the examination in connivance with the officers of MPSC. And fourthly all the irregularities were committed for the benefit of the petitioners to get them appointed in the posts of Dy. Superintendent of Police and for that purpose, they deliberately submitted invalid and false caste certificates at the time of selection, whilst on earlier occasion the petitioners had not claimed to be belonging to reserved category and all these acts were committed by use of pressure tactics. It was specifically stated in the order dated 16th January, 2006 that the said grounds were clearly established by internal inquiry conducted in the - 16 - matter by MPSC pursuant to the complaint received against the petitioners. Based on the order withdrawing the recommendations of the petitioners, the order dated 24th January, 2006 came to be passed by the Government holding that the selection of the petitioners was not based on merits. 13. The orders of withdrawal of recommendation of the names for appointment of the petitioners were sought to be challenged before the Tribunal on various grounds including the ground that those orders were issued in violation of Article 311 of the Constitution of India and were against the rules of natural justice inasmuch as that neither any valid notice was issued nor fair any opportunity of being heard was given to the petitioners before passing the orders on the ground on which they were passed. It was further contention on behalf of the petitioners that the petitioners’ caste claims were duly scrutinised by the caste scrutiny committee and it was confirmed that the petitioners belonged to Gadi Lohar N.T.(B) community. Originally the caste certificates were issued by the Executive Magistrates where the petitioners were residing at the relevant time. The decision of caste scrutiny committee was even confirmed by the High court in its order dated 22nd December, 2005 passed in - 17 - Writ Petition No.3033 of 2005 and in any case, the MPSC had not disputed validity of the caste certificate validated by the Caste Scrutiny Committee. The Tribunal has dismissed the appeals filed against the orders passed by the MPSC holding that the petitioners had submitted illegal and bogus caste certificate and thus have cheated the MPSC and the recommendations were obtained on the basis that they belonged to Gadi Lohar N.T.(B) category. The examination and the selection process were flouted at the instance of the petitioners and consequently the posts of Dy.SP were secured by them adopting mal-practices. 14. The challenge to the order issued by the Government terminating the services was on the ground that the same was passed without following the principles of natural justice. The Tribunal rejected the said challenge holding that the said order was passed solely on the basis of the recommendations made by the MPSC and hence it could not be said that there was violation of principles of natural justice. It cannot be disputed that if MPSC lawfully withdraws the recommendation, then certainly the government cannot be blamed for passing order terminating the services solely based on the order of MPSC withdrawing the - 18 - recommendation. Once the recommendations themselves are lawfully withdrawn, termination of services would become a consequential action, lawfully taken, and in that case there could be no ground to complain of violation of principles of natural justice by the government. It is therefore necessary to ascertain whether the order of withdrawal of recommendations passed by MPSC was lawful and is sustainable. 15. It is the contention on behalf of the petitioners that the grounds, on which the action of withdrawal of names of the petitioners is sought to be justified by the MPSC, are patently illegal and erroneous and cannot withstand the judicial scrutiny. It is their contention that the caste claim of the petitioners was duly verified by the competent authority i.e. the caste scrutiny committee, and therefore, it was not open for the MPSC to question genuineness and validity of the caste certificates of the petitioners. The very foundation for initiation of action was totally faulty and untenable. It is their further contention that the Tribunal ought to have appreciated that the caste claim being finally adjudicated upon by the statutory body duly competent to verify the same and challenge thereto having been rejected and thus the issue having attained finality, - 19 - it was not open either for the MPSC to initiate action on fanciful assumption about the invalidity of caste claim of the petitioners or for the Tribunal to dismiss the appeal on the same ground. The attention is also drawn to the observations made in the impugned order by the Tribunal to the effect that "the MPSC is not challenging the validity of the caste certificate issued by the scrutiny committee. It has gone only into the genuineness of the documents," as was submitted by the learned advocate for the MPSC in the course of hearing of the appeals. 16. As regards the caste verification of the petitioners is concerned, it was sought to be contended before the Tribunal that the MPSC could not have sat in appeal over the decision of the caste scrutiny committee and once the caste scrutiny committee had confirmed the validity of the caste certificates of the petitioners, it was not open to the MPSC to take a different view than the one confirmed by the caste scrutiny committee which is a statutory body and final authority to decide on the said subject. The contention has been rejected by the Tribunal stating that though the function of the Tribunal does not permit to go behind the caste scrutiny committee’s decision regarding the caste - 20 - claim of the petitioners, the facts disclosed by the MPSC through the inquiry committee report disclose sufficient cause of action taken by MPSC to debar the petitioners on the basis that the petitioners had cheated the MPSC. The findings in that regard are essentially based on the inquiry report. The order nowhere discloses the said inquiry report. It merely refers to the fact that while competing for earlier examination held by the MPSC, the petitioners had not claimed any caste reservation, and secondly that the caste certificate which was produced by their father at the time of his appointment in the government service, disclosed that he belonged to Lohar Caste. It is on these two grounds, the Tribunal has arrived at the finding about the cheating by the petitioners to the MPSC. Merely because on the earlier occasion the petitioners had not sought entry in the service on the basis of their caste claim and on the second occasion, they did make such claim, that by itself can never be justification to doubt the veracity of their