1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR [CIVIL APPLICATION NO. 7166/2008 IN M.C.A. ST. NO.13579/08 IN W.P. 5711/2007] [Sunil Ingle ..vs.. Zilla Parishad and another ] ================================== Mr. S.J. Khandalkar, Advocate for applicant Mr. Shyam Ahirkar, Adv for respondent no.1 Mr. A.M. Deshpande, A G P for respondent no.2 ================================== CORAM: D.K. DESHMUKH & P.B. VARALE,JJ. DATE: 18TH DECEMBER, 2008. Civil Application No.7166/2008: Civil application granted in terms of prayer clause. M.C.A. Stamp No.13579/2008: M.C.A. also granted in terms of prayer clause. Writ Petition No.5711/2007: By this petition, the petitioner claims direction to Zilla Parishad, Buldhana to extend benefit under the Government Resolution dated 15.6.1995 and protect the employment of the petitioner. It is a common ground that the petitioner was appointed as Assistant Teacher in a Zilla Parishad School in a post reserved for Scheduled Tribe. The petitioner claimed that he belongs to Mahadeo Koli Tribe. But it was ultimately found that the petitioner does not belong to Mahadeo Koli – Scheduled Tribe. According to the petitioner, now he belongs to Koli caste which according to the petitioner is a Special Backward Class declared by the State Government and therefore, in view of the resolution dated 15.6.1995 the services of the petitioner as Assistant 2 Teacher can not be terminated though it is found that he does not belong to Scheduled Tribe and that his appointment can be adjusted against the quota reserved for Special Backward Class Category. 2] Perusal of the government resolution dated 15.6.1995 shows that the government has by resolution dated 7.12.1994 declared that certain castes are to be treated as Special Backward Class and for that 2% reservation is made in government / semi-government service and educational institutions. Then it is stated that the reservation to be given to the Special Backward Class shall be given for direct recruitment and also for promotion. It further states that those persons who have been appointed against seats reserved for Scheduled Tribe in government / semi-government service, if that person is found to be belonging to Special Backward Class, his services should not be terminated and he should not be reverted. After having heard the learned counsel for the petitioner we find that this government resolution which directs protection of the services of the persons belonging to Special Backward Class is invalid. It is violative of guarantee under articles 14 and 16 of the Constitution of India. 3] The petitioner was appointed admittedly against a seat reserved for Scheduled Tribe, when the petitioner did not actually belong to Scheduled Tribe. Therefore, now the services of the petitioner cannot be accommodated in the quota reserved for the Special Backward Class category. Reservation for Special Backward Category is created for the first time on 7.12.1994. The recruitment to Zilla Parishad services is governed by the rules framed under the Zilla Parishad Act. So far as the reservation to be given in service under the Zilla Parishad is concerned, a 3 provision is made in the Rules framed under the Zilla Parishad Act and therefore, reservation of seats in Zilla Parishad, is occupied field, unless and until those rules are amended, no Government Resolution for reservation for Special Backward Class in Zilla Parishad Services can be issued and therefore, the government resolution dated 15.6.1995 directing accommodation of those persons against seats reserved for Special Backward Class cannot be made applicable to Zilla Parishad services. In our opinion there is one more reason why the persons who have been appointed against Scheduled Tribe Quota can not be accommodated in the seats reserved for Special Backward Class, because if it is assumed that the seat against which person is to be accommodated is reserved for Special Backward Class, then before granting petitioner appointment against that seat, it is mandatory, because it is public service, to advertise that post so that every person who will be eligible to compete for that post and who belongs to Special Backward Class gets an opportunity to apply for the post and offer himself as candidate. Accommodation of the petitioner against a seat reserved for Special Backward Class by such back door method will deprive other persons belonging to Special Backward Class of their fundamental rights guaranteed under articles 14 and 16 of the Constitution of India. Article 13 of the Constitution mandates the State not to make any law which abridges the fundamental rights. Prohibition contained in article 13 will also apply to the exercise of executive power by the State, because executive power of the State is co-extensive with the legislative power. If the state does not have power to make legislation violating or abridging fundamental right obviously, it does not have power to issue government resolution which has the result of abridging fundamental rights. We find that this government resolution in 4 terms violates fundamental rights guaranteed by article 14 and 16 of the Constitution and therefore, the High Court will not be justified in issuing its writ for enforcement of such invalid and infirm government resolution. The Supreme Court has observed in the judgment reported in (2008)4 Supreme Court Cases 612 [Union of India ..vs.. Dattatray s/o Namdeo Mendhekar] that persons who secure services on the basis of invalid caste certificate, their services can not be protected. The observations made in paragraph 6 of the judgment, in our opinion are relevant and same are as under: “6. In this context, we may also refer to the decisions in Bank of India ..vs.. Avinash D. Mandivikar and Addl. G.M. - Human Resource, Bharat Heavy Electricals Ltd. ..vs.. Suresh Ramkrishna Burde wherein this Court held that when a person secures appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. In the latter case, this Court explained Milind thus: (Suresh Ramkrishna Burde case, SCC.P.340, para 7) “7. The High Court has granted relief to the respondent and has directed his reinstatement only on the basis of the Constitution Bench decision of this Court in State of Maharashtra ..vs.. Milind. In our opinion the said judgment does not lay down any such principle of law that where a person secures an appointment by producing a false caste certificate his services can be protected and an order of reinstatement can be 5 passed if he gives an undertaking that in future he and his family members shall not take any advantage of being member of a caste which is in reserved category.” This Court further held that even in cases of admission to educational institutions, the protection extended by Milind will be applicable only where the candidate had successfully completed the course and secured the degree, and not to cases where the falsehood of the caste certificate is detected within a short period from the date of admission.” The petition is therefore, rejected. JUDGE JUDGE smp.