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2012 DIGILAW 2228 (BOM)

Ramesh Mahadeo Dhakate v. Union of India

2012-11-30

B.R.GAVAI, R.K.DESHPANDE

body2012
JUDGMENT :- Rule, made returnable forthwith. Heard by consent. 2. The petitioner has approached this court for a direction to the respondent nos. 1 and 2 to release the retiral benefits of the petitioner. 3. The petitioner was appointed on 29.11.1969 as Clerk with the respondents against the post reserved for Scheduled Tribe, since the petitioner claimed to be belonging to Halba - Scheduled Tribe. The petitioner's claim has been invalidated by the Scrutiny Committee. Being aggrieved thereby, the petitioner approached this Court by way of Writ Petition No. 4383/2009. The said petition has been allowed and the order of Scrutiny Committee has been quashed and set aside and the matter is remitted back to the Scrutiny Committee. The matter is still pending before the Scrutiny Committee. 4. However, the petitioner during the pendency of this petition has decided to give up his claim of belonging to Scheduled Tribe and has restricted his claim in the petition only for protection of the service in view of the judgment of Apex' Court in case of Kavita So]unke vrs. State of Maharashtra reported in 2012 (5) Mh.L.J. 921 : [2012 ALL SCR 2393] and the office memorandum dated 10th August, 2010. 5. The Apex Court in case of Kavita Solunke relying on the case of State of Maharashtra vrs. Milind Katware and others reported in 2001 (1) Mh.L.J.1 : [ 2001(1) ALLMR 573 (S.C.)], after taking into consideration the peculiar facts and circumstances pertaining to Halba Kostis, has held that all such appointments which are become final on 28th November, 2000, shall stand protected. The Union of India has also published an Office Memorandum dated 10th August, 2010, thereby protecting the services of such of the employees who were in confirmed service on 28th November, 2000. 6. Shri Mishra, the learned counsel for the respondents submits that the departmental proceedings are pending against the petitioner. However, after query, he fairly states that the departmental proceedings pertains only on the ground of invalidation of the claim of the petitioner and non cooperation of the petitioner in submitting the documents for verification to the Scrutiny Committee. 7. It is thus clear that the pensionery benefits are being denied to the petitioner on the ground of departmental proceedings, which are initiated only on the ground of invalidation of his cast claim. 8. 7. It is thus clear that the pensionery benefits are being denied to the petitioner on the ground of departmental proceedings, which are initiated only on the ground of invalidation of his cast claim. 8. We are of the considered view that this case of the petitioner is squarely covered by the decision of the Apex Court in case of Kavita Solunke vrs. State of Maharashtra : [2012 ALL SCR 2393] and the Office Memorandum dated 10th August, 2010. However, it is made clear that the petitioner is not entitled to any further promotion on the basis of his claim of belonging to Scheduled Tribe after 28th November, 2000. In that view of the matter, we are inclined to partly allow the petition in the following terms. [i] The respondents shall determine the last drawn salary to which the petitioner is entitled to after taking away any of the benefits which are given to the petitioner on the basis of his claim of belonging to Scheduled Tribe, after 28th November, 2000, and consider his status in the employment on 28th November, 2000 as a candidate belonging to general category. [ii] After determining the last drawn salary 4 to which the petitioner is entitled to in view of the aforesaid, the retiral benefits including the pension would be paid and made applicable to the petitioner within a period of three months from today. Needless to state that arrears, if any, shall also be paid to the petitioner. [iii] However, it is made clear that the respondents would be entitled to adjust the amount, if any, which is paid to the petitioner in excess to that what he is entitled to. 9. In view of above, rule is made absolute in the aforesaid terms with no order as to costs. Petition partly allowed.