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2013 DIGILAW 1618 (BOM)

Ghanshyam v. Executive Engineer (Stores)

2013-08-19

ANOOP V.MOHTA, Z.A.HAQ

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JUDGMENT Anoop V. Mohta, J. Heard the learned counsel for the parties. 2. The petitioner was appointed as a Typist by respondent no.1-MSEB on 22.02.1999 against the vacancy on the reserved post as Scheduled Tribe candidate. Though the appointment was temporary on a condition of submitting valid caste certificate, the petitioner was in service till the date of termination dated 04.05.2005 which was issued as his caste certificate was invalidated by Caste Scrutiny Committee, Nagpur by its order dated 16.10.2004/29.10.2004. 3. This Court admitted the petition on 07.10.2008 and directed it to be heard along with other similar petitions. 4. The petitioner by this petition, apart from representation again submitted, prayed to protect the service in view of ( 2001(1) Mh.L.J. 1 ) State of Maharashtra Versus Milind Katware & Others and also for the reason that there are other judgments whereby this Court protected and granted the benefits revolving around the judgments of the supreme Court. The learned counsel appearing for the petitioner pointed out on the basis of the written submissions already filed that the petitioner cannot be stated to be the beneficiary of the judgment as he was appointed on the condition of a submission of a certificate which he admittedly failed to submit within reasonably time. The petitioner, therefore, though completed the period of probation, now as his caste is invalidated, is not entitled for the protection and for the reliefs so claimed. The application for final disposal filed by the petitioner on 25.09.2012 and further placed on record the judgments of the Supreme Court as well as this Court including Kavita Solunke Versus State of Maharashtra. 5. The petitioner also placed on record the order passed by the Supreme Court where the appointment was made in July-2000 and still the Supreme Court has protected the services and granted the relief. We have also noted the same in Writ Petition No.48/2002 decided on 12.08.2013 in following words: 4. This Court (Coram: Anoop V. Mohta & Z.A. Haq, JJ.) in the case of Ku. Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha in Writ Petition No.5530/2012 & others, dated 10.07.2013, on same line, taking note of the above referred judgments and also other judgments of this Court granted protection and passed an order including the order of reinstatement on certain terms and conditions. Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha in Writ Petition No.5530/2012 & others, dated 10.07.2013, on same line, taking note of the above referred judgments and also other judgments of this Court granted protection and passed an order including the order of reinstatement on certain terms and conditions. Learned counsel appearing for the petitioner submitted that petitioner being similarly placed employee is entitled for the same relief subject to the conditions as ordered. 4-A. Respondents are also not in a position to deny the fact that the present petition is also covered by our judgment in Ku. Vijaya Deorao Nandanwar v. Chief Officer, Municipal Council, Wardha, in Writ Petition No.5530/2012 & others, dated 10.07.2013. 5. Learned counsel for the petitioner also placed on record a copy of the order passed by Supreme Court in Union of India v. Vimal Murlidhar Kumbhare & others (Special Leave to Appeal (Civil) No.1070/06) dated 30.1.2009, where in view of the fact that the appointment was made in July/August 2000 and the case will be covered by the following observation of the Constitution Bench in State of Maharashtra v. Milind and others, 2001 (1) SCC 4 , following order was passed. “Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No.16372 of 1985 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment.” 6. The learned counsel for the petitioner has pointed out the basic objection also that the present petition is not maintainable in this Court (Nagpur Bench) as the impugned order is passed by the Superintending Engineer, Pune and he was not joined as a party respondent by the petitioner. 7. Considering the facts and circumstances referred above and as petition is pending since 2005 and also admitted for final hearing, without expressing anything so far as those objections are concerned, we are inclined to dispose of the present petition as there is no reason now to accept the submissions regarding jurisdictional issue. Respondent no.1's reply and the arguments made opposing the averments made by the petitioner thereby contesting the petition on every aspect on merit just cannot be overlooked and the relief cannot be denied to the petitioner on the ground/objection so raised. Respondent no.1's reply and the arguments made opposing the averments made by the petitioner thereby contesting the petition on every aspect on merit just cannot be overlooked and the relief cannot be denied to the petitioner on the ground/objection so raised. The submissions filed by the respondent no.1 are sufficient to dispose of the petition on merit itself. 8. Therefore, taking overall view of the matter and in view of our judgment in the case of Ku. Vijaya Deorao Nandanwar Versus Chief Officer, Municipal Council, Wardha in Writ Petition No.5530/2012 & others, dated 10.07.2013, we pass the following order. i. The writ petition is partly allowed. ii. The petitioner is entitled for protection of service and reinstatement as Typist on the establishment of respondent no.1 with continuity of service except back wages. iii. The termination order is quashed and set aside. iv. The petitioner will not be entitled to any benefits on the basis of the earlier caste certificate. The petitioner undertakes to file the undertaking to the aforesaid effect within two weeks. Respondents are at liberty to withdraw the benefits, if any, granted to the petitioner after 28.11.2000 treating the petitioner to be belonging to Scheduled Tribe Category. v. The petitioner to submit the existing caste certificate to complete the formality of service record as early as possible and the Caste Scrutiny Committee to decide the same as early as possible and referably within nine months. vi. The parties to cooperate accordingly. vii. Liberty is granted to respondent no.1 to take action in case of proved fraud or misrepresentation in accordance with law. 9. Rule is made absolute accordingly. No costs.