W.P. NO.10836/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 10836 OF 2010 Nitin s/o Ashokrao Gadekar age 24 years, occ. nil r/o N.M.C. coloey Vaijapur, Tq. Vaijapur Dist. Aurangabad. .. PETITIONER VERSUS 1 The Union of India through Ministry of Human Resources Development Department of Education Government of India 2 Jawahar Navodaya Vidhyalaya Kannad, Dist. Aurangabad. through its Principal. 3 Scheduled Caste, Vimukta Jati Nomadic Tribe, Other Backward Class and Special Backward Class Caste Certificate Scrutiny Committee Aurangabad, Division Aurangabad Tq. & Dist Aurangabad. .. RESPONDENTS Mr. A.A. Nimbalkar, advocate holding for Mr. V.D. Salunke, advocate for the petitioner. Mr. K.G. Patil, AGP foe the State. Mr. Alok Sharma, Standing Counsel for respondent no. 1 & 2. ===== W.P. NO.10836/2010 2 CORAM : B.R. GAVAI & R.M. BORDE, JJ. DATE : 2 nd DECEMBER, 2010 ORAL JUDGMENT : ( PER B.R. GAVAI, J.) 1 Rule. Rule made returnable forthwith. 2 Learned counsel Mr. Alok Sharma waives notice on behalf of respondent nos. 1 and 2. Mr. K.G. Patil, learned AGP waives notice on behalf of respondent no. 3. 3 Petitioner, who belongs to Mali OBC caste, after graduation has enrolled his name with the Employment Exchange, Aurangabad. 4 Respondent no. 2 had called names from the Employment Exchange for filling the posts of Store Keeper. Petitioner’s name came to be forwarded by the Employment Exchange. After petitioner’s name was forwarded, in the process of shortlisting and selection, petitioner came to be selected and, accordingly, appointment order was issued on 27 th October, 2010. 5 In view of clause IV of the appointment order, OBC candidates were W.P. NO.10836/2010 3 required to submit caste certificate issued by the competent authority. Subsequently, vide communication dt. 19-11-2010, the petitioner was directed to submit caste validity certificate. Since according to the Government Resolution dt. 28-1-2004, it is for the employer to send the papers for caste validity to the Committee and since the employer had not sent the same, the petitioner has approached this court seeking direction to respondent no. 2 to forward his papers to the Committee for verification of his caste claim. 6 Mr. Nimbalkar, learned counsel for the petitioner submits that as per the appointment order what was required to be submitted by the petitioner was only caste certificate issued by the competent authority. He submits that though subsequently an attempt has been made by the petitioner for getting validity certificate, however, in view of the Government Resolution cited supra, it is not in the hands of the petitioner to get the validity certificate. He further submits that though the Collector, Aurangabad has also instructed respondent no. 2 to forward papers of the petitioner, no action has been taken by respondent no. 2. He therefore submits that it is necessary in the interest of justice to issue direction to respondent no. 2 to forward papers pertaining to the caste claim of the petitioner to the W.P. NO.10836/2010 4 Committee. 7 Mr. Alok Sharma, learned Standing Counsel for respondent nos. 1 and 2, on the contrary, submits that the petitioner has given undertaking that he will submit caste validity certificate within a period of one month. He submits that in that view of the matter, now the petitioner cannot say that he shall not be directed to submit validity certificate. 8 A party cannot be directed to do an act which is impossible for him. In view of the aforesaid Government Resolution, it is not permissible for a candidate to directly apply to the Committee for obtaining validity certificate. It is only the employer who is required to forward the claim of the concerned candidate for validity to the Committee. Reliance placed on so called undertaking would not be of any assistance to the case of respondent no. 2. A helpless employee seeking employment would be at no option when he is required to give such an undertaking. However, an undertaking, performance of which is beyond the control of a person cannot be insisted upon. As a matter of fact, the Collector, Aurnagabad has also instructed respondent no. 2 to forward the claim of the petitioner to the Committee. W.P. NO.10836/2010 5 9 Apart from that, it can be seen that in the appointment order itself that, what is required to be submitted is a caste certificate issued by competent authority i.e. District Magistrate / Deputy Commissioner. The petitioner has already submitted caste certificate dt. 5-3-2010 issued to him by the competent authority i.e. Sub-Divisional Officer, Vaijapur. Even, from perusal of Exh. J, it would reveal that the validity certificate is already issued in favour of real brother of the petitioner namely Manoj and his real sister namely Kalyani. In that view of the matter, we find that the petitioner has made out a prima facie case. 10 In that view of the matter, rule is made absolute in the following terms :- i Respondent no. 2 is directed to forward papers regarding caste claim of the petitioner, within a period of four weeks from today, to the respondent no. 3. ii Respondent no. 3 – Committee on receipt of the papers shall decide the claim of the petitioner as expeditiously as possible and after giving opportunity of hearing to the petitioner. iii Respondent no. 2 would permit the petitioner to join the W.P. NO.10836/2010 6 duties in pursuance to the appointment order dt. 27-10-2010 without insisting upon submission of validity certificate. iv Needless to state that the appointment of the petitioner would be subject to decision of respondent no. 3 – Committee regarding validity of his claim. ( R. M. BORDE ) ( B. R. GAVAI ) JUDGE JUDGE dyb/office/wp10836.10.odt Authentic copy ( Mrs. D. Y. Bhogle ) Pvt. Secy. to the Hon’ble Judge