1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No.527 of 2009 In Writ Petition No.4242 of 2004 and Writ Petition No.4532 of 2004 (D) (Ku. Shalini d/o Gajananrao Dalal (Now Sou. Shalini Onkar Sorte) v. New English High School Association, through Secretary, and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.P. Bhandarkar, Advocate for Appellant. Shri S.R. Deshpande, Advocate for Respondent No.1. Coram : A.H. Joshi and A.R. Joshi, JJ. Dated : 25 th November, 2009 1. The appeal is taken up for final disposal by consent. 2. This Letters Patent Appeal arises out of the common judgment and order of the learned Single Judge passed in Writ Petition Nos.4242 and 4532 of 2004. 3. Writ Petition No.4232 of 2004 was filed by the management aggrieved by the judgment and order of the School Tribunal directing reinstatement of the appellant herein with continuity of service and payment of full back wages on the post of Assistant Teacher. 2 4. Writ Petition No.4242/2004 was filed by the appellant herein on the limited ground that the reinstatement ordered by the Tribunal was on the post of Assistant Teacher while the post held by her prior to removal was of Headmistress. 5. By impugned order the learned Single Judge has allowed management’s writ petition and as its consequence dismissed the present appellant’s writ petition. The appellant is before this Court against this common judgment. 6. The issue, on which fate of petitioner’s case depended before learned Single Judge was :- “Whether the employee is entitled for protection of services in view of Government Resolution dated 15 th June, 1995 even after cancellation of the tribe claim on the basis of which appointment was made invalidated”. 7. The learned Advocate for the appellant had placed reliance on the judgment of this Court in Surendra Hanmanloo Gandam v. State of Maharashtra and others, reported in 2006(Suppl) Bombay C.R. 618, in which this Court had taken a view that the said Government Resolution dated 15-6-1995 operates 3 even after enforcement of the Maharashtra Scheduled Castes, Scheduled Tribe, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, as it is not cancelled or revoked and is not contrary to the provisions of said Act. Appellant had also placed reliance on various other judgments including the case of State of Maharashtra Vs. Milind, 2001(1) Mh.L.J. Page-1 for protecting the employment. 8. It is seen that before learned Single Judge the learned Advocate for the employer had placed reliance on the judgment of this Court : (i) Sunil Ingle v. Zilla Parishad and another, reported in 2009(2) ALL MR 867, in which this Court has categorically recorded in para 2 that the Government Resolution dated 15-6-1995 relied upon for protection of employment is violative of Articles 14 and 16 of the Constitution of India. (ii) Two judgments of Full Benches of this Court, reported in 2009(5) Mh.L.J. 482 (Vandana Bhazrat Kauthalkikar Vs. State of Maharashtra & others) and 2009 (2) Mh.L.J. Page 788 (Ganesh Rambhau Khalale Vs. State of Maharashtra & Others). 4 (iii) Three Judge bench of Hon’ble Supreme Court, reported in 2008 (2) Mh.L.J. 720, Union of India Vs. Dattatraya Namdeo Mendhekar and various other citations. 9. Learned Single Judge has dealt all other judgments relied upon by the employee, and the employer. 10. The learned Single Judge relied upon : (a) Two judgments of the Full Bench of this Court, laying down the law namely, a person whose tribe claim was rejected, would not be entitled to remain in employment by invoking protection declared by the Government of Maharashtra through Government Resolution dated 15 th June, 1995. (b) Dattatraya Mendhekar’s judgment of Apex Court supra; while deciding the writ petitions. 11. The learned Advocate for the appellant took a very serious objection to a Single Judge’s reliance on 2009(2) ALL MR 867 contending that this approach of the learned Single Judge did serious violence to the judicial discipline and propriety of different coordinate benches taking divergent views by placing reliance on 5 reported judgment of the Hon’ble Supreme Court in 1999(9) SCC 479(State of Maharashtra Vs. Keshav Ramchandra Pangare). 12. Learned Advocate for the appellant also wants this Court to agree with a former Division Bench judgment in case of Surendra Gandam (Supra), follow it, disagree latest judgment of another Division Bench judgment which is a duly considered judgment in case of Sunil Ingle (Supra), and even disregard and ignore two Full Bench judgments. 13. It is seen that the issue in the case of Surendra Hanmanloo Gandam, 2006(suppl) Bom. C.R. P-618, cited supra, was not as regards the constitutional validity and the said Government Resolution dated 15.06.1995. On the other hand the said petitioner claimed to be entitled to the said benefits. Argument which was advanced and dealt with by the Division Bench of this Court was as to whether in the light of commencement of Scheduled Caste, Scheduled Tribes Act, 2000, whether the said Government Resolution would have application. This Court in that case held that the benefit which was accrued to the petitioner by virtue of said Government Resolution would continue to operate in the background that said Government Resolution was not withdrawn. The question as to constitutional validity of said 6 Government Resolution was not scrutinized or adjudicated by the bench in said case. 14. It is seen from both full bench judgments of this Court that those judgments are based on three Judge bench of the Hon’ble Supreme Court. Other judgments granting protection are viewed by Full Bench of this Court to be cases in which the Hon’ble Supreme Court has exercised its jurisdiction under Article 142 of the Constitution of India as indicated in the judgment of the Full Bench. 15. It would not be necessary to discuss all judgments discussed by this Court. It shall suffice to refer to Milind Katware’s case and deal with it as done hereinafter at appropriate place. 16. In so far as Milind Katware’s case is concerned it was a case arising out of protection of admission of a student in medical education. It was a case of career of a young student. In the facts of the case Hon’ble Supreme Court had granted said protection “on the facts of the case.” 17. Question of protection of employment was not involved in case of Milind Katware directly or indirectly. Milind Katware’s 7 case is not a guiding or binding precedent in service matters. Particularly in the background of the judgment of Apex Court in case of Dattatraya Mendhekar, reported in 2008(2) Mh.L.J. 720, Union of India Vs. Dattatraya Namdeo Mendhekar and we follow it. 18. This Court is of the considered view that this Court is bound by both the Full Bench judgments of this Court as much the learned Single Judge was . 19. The long-drawn submissions of the learned Advocate for the appellant, therefore, fail to persuade us to disagree with the view taken by the learned Single Judge. 20. In the result, the appeal fails and is dismissed with costs. 21. The learned Advocate for the appellant prays for protection of the employment of the appellant. Continuation of protection is sought on the ground that for long duration in spite of the fact that invalidation of tribe claim, the appellant has been in the employment. The learned Advocate further urges that such continuation would not prejudice anyone. The facts of present case are such that the appellant did not merely secure employment and 8 serve as Assistant Teacher, but also got advancement of being Head Mistress. It is not even appellant’s case that continuation in the employment is her legal right. She even does not claim that she got the job as Assistant Teacher in open category and that she was claiming the benefit due to her alleged Tribe status for the purpose of promotion only. All that she claims is continuation based on admitted fact that she has no legal right. In this situation, opportunity of employment which the appellant has availed was an opportunity to which she was not entitled. Once it is found that the appellant has availed of the benefit which she was not entitled, we see no legal ground as to why she should be entitled for continuation of the said status. This prayer has no merit and is, therefore, rejected. Certified copy is expedited. Judge. Judge. pdl