1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.792 OF 2009 Prashant Punaji Bhandarkar. ...Petitioner vs. 1.State of Maharashtra & ors. ...Respondents. --- Mr.R.K.Mendadkar, for Petitioner. Mr.C.R.Sonawane, AGP for Respondents 1, 3 & 4. Mr.Nitin Jamdar, for Respondent no.2. CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 21st November,2009 P.C.:- 1. Heard. The facts that are relevant for deciding this petition are that the petitioner was appointed on 26.8.1996 in the service of Zilla 2 Parishad on the post reserved for Scheduled Tribe because he claimed that he belongs to Halaba Scheduled Tribe. He was appointed on temporary basis. One of the conditions of his appointment was that if the Caste certificate issued by the Executive Magistrate on the basis on which he has been appointed, is found to be invalid, his services will be terminated. His Caste certificate was sent to Scrutiny Committee for verification. The Scrutiny Committee by its order dated 26.12.2001 has held that the petitioner does not belong to Halaba Scheduled Tribe and that his caste certificate is invalid. The petitioner did not disclose this fact to its employer-Zilla Parishad, with the result he continued to occupy the post in the Zilla Parishad though his caste certificate was found to be invalid by the Scrutiny committee by order dated 26.12.2001. It appears that thereafter in the year 2006, the Zilla Parishad became aware of the order passed by the Scrutiny Committee and therefore, on the basis of that order and relying on the condition in the appointment order of the petitioner, his services were terminated with effect from 12.1.2006. The 3 petitioner preferred an appeal against that order before the Divisional Commissioner. That appeal was decided by order dated 22.3.2007 and the Divisional Commissioner surprisingly set aside the order terminating the services of the petitioner though it was an admitted fact that he has occupied the seat reserved for Scheduled Tribe and there was a final order of the Scrutiny Committee holding that he does not belong to Halaba Scheduled Tribe. It appears that a Revision proceeding was taken up by the Government against the order of the Appellate Authority and by order dated 3.12.2008 the order of the Appellate Authority was set aside. 2. The grievance of the petitioner, relying on some Government Resolutions, is that the Government does not have revisional jurisdiction against the Appellate Authority s order. In our opinion, it is not necessary for us to inquire into whether the Government has revisional jurisdiction against the Appellate Authority s order or not, because we find that in view of the clear finding recorded by the 4 Scrutiny Committee that the petitioner does not belong to Scheduled Tribe which has become final and the fact that admittedly the petitioner was occupying the seat reserved for Scheduled Tribe, the Appellate Authority could not have set aside the order terminating the services of the petitioner. If any authority is necessary for this proposition, reliance can be placed on the Judgment of the Supreme Court in the case Addl.General Manager-Human Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde, (2007)5 Supreme Court Cases 336 and the judgment of Full Bench of this Court in the case Shilpa Vishnu Thakur Vs. State of Maharashtra & ors., 2009(3) Bom.C.R. 497 wherein it has been held that once the caste certificate on the basis of which the petitioner secure appointment is found to be invalid, the petitioner has no authority to continue to hold that post. The Supreme Court in the judgment in the case Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and others, (1999)8 Supreme Court Cases 16 has held that even if the order impugned in the petition filed under Article 226 of the Constitution of India 5 is found to be passed without jurisdiction then also High Court can decline to entertain the petition if it finds that the result of interfering with the order impugned would amount to restoring patently illegal and unjust order. The observations of the Supreme Court in paragraphs (11) and (15) are relevant, they read as under:- 11. But in the Act, the authorities and their powers have been specified and we do not find any provision which vests power on the Board of Revenue, so we have to proceed on the assumption that the Board of Revenue has no power. 12. Therefore, the question is whether the order of the Member of Board of Revenue should be quashed on this ground. If the order is set aside, the result would be that the notice directing the appellant to refund the additional amount of compensation assessed at ten times of the net income would have to be quashed. In other words, the earlier reassessment of compensation made by giving ten times of the net income would revive. If under the law the appellant is 6 not entitled to get compensation more than three times of the net income it would amount to restoring an illegal order. 13. In Gadde Venkateshwara Rao V. Govt. of A.P. This Court considered the action of the State Government under the Andhra Pradesh Panchayats Samithis and Zilla Parishads Act,1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if the High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power. 14. In Mohd.Swalleh V. IIIrd ADJ similar view was also expressed by this Court. In that case the order passed by the prescribed authority under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding 7 that the order of the prescribed authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The order of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the prescribed authority itself being bad, no exception can be taken against the refusal of the High Court to exercise powers under Article 226. 15. Therefore, in view of the above ratio laid down by this Court, we hold that even if the Member of Board of Revenue had no power to issue direction for giving notice for refund of the excess amount paid, no exception can be taken to the said order if it is found that legally the appellant was paid excess compensation under the Act. 3. Taking overall view of the matter, therefore, in our opinion, the petitioner does not deserve interference in his favour at the hands of this Court 8 in its extraordinary jurisdiction under Article 226 of the Constitution of India. The petition, therefore, is rejected. No order as to costs. (D.K.DESHMUKH, J.) (K.K.TATED, J.)