IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2048 OF 2007

Chief Executive Officer, Zilla Parishad ...  Appellant

Versus

State of Maharashtra & others     ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

1. The  challenge  in  this  appeal  is  to  the  judgment  

dated August 31, 2004, passed by the Division Bench of  

the High Court of Judicature at Bombay, Nagpur Bench,  

in Writ Petition No. 1764 of 2003 whereby writ petition  

filed by respondent No. 2, i.e., Gajanan Sadashiv Ghule,

was allowed by setting aside the order of termination of  

his services dated May 4, 1998.

2. Briefly stated the facts of the case are as follows:

Claiming that he belongs to Scheduled Tribe,  

the respondent No. 2 applied to the appellant to appoint  

him as an Assistant Teacher.  The respondent No. 2 was  

selected by the Subordinate  Selection Board from the  

Scheduled  Tribes  category  and  was  appointed  as  

Assistant  Teacher  temporarily  on  January  16,  1993.  

The appointment of the respondent No. 2 was subject to  

verification  of  his  tribe  claim.   The  tribe  Certificate  

produced by  the  respondent  No.  2 was forwarded for  

verification  to  Scheduled  Tribe  Caste  Scrutiny  

Committee (the ‘Scrutiny Committee’ for short).  Some of  

the documents submitted by respondent No. 2 indicated  

that he was a “Hindu Koli”.  The Scrutiny Committee,  

after  giving  the  respondent  No.  2  an  opportunity  of  

hearing,  invalidated  the  tribe  Certificate  by  decision  

dated November 6,  1997.   The respondent No.  2 was  

holding the post of Assistant Teacher temporarily, which  

was specifically reserved for Scheduled Tribe.  Therefore,  

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the appellant terminated services of the respondent No.  

2  by  order  dated  May  4,  1998.   Thereupon,  the  

respondent No. 2 filed writ  petition No. 1660 of 1998  

before the Nagpur Bench of  Bombay High Court.   He  

challenged the order terminating his services as well as  

order dated November 6, 1997, passed by the Scrutiny  

Committee.  It was pointed out to the Division Bench of  

the High Court, hearing the said matter, that interview  

was fixed by the Scrutiny Committee on November 6,  

1997, but the respondent No. 2 received notice in that  

behalf  on  November  12,  1997.   The  said  submission  

made on behalf of respondent No. 2 was accepted by the  

High Court.  The High Court set aside the order dated  

November  6,  1997  invalidating  caste  claim  of  the  

respondent No. 2 and directed the Scrutiny Committee  

to  decide  the  matter  afresh  after  affording  necessary  

opportunity  of  hearing  to  him.   The  Court  further  

directed respondent No. 2 to appear before the Scrutiny  

Committee  on  January  29,  1999  along  with  all  

necessary documents.  The respondent No. 2 appeared  

before  the  Scrutiny  Committee  on January  29,  1999,  

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but requested for grant of time and, therefore, he was  

called upon to appear on December 30, 1999.  Again,  

the  respondent  No.  2  appeared  before  the  said  

Committee on December 30, 1999 and prayed to grant  

time.  The record shows that thereafter the respondent  

No.  2  was  not  interested  in  prosecuting  the  inquiry  

before the Scrutiny Committee.  The respondent No. 2  

filed Writ Petition No. 879 of 1999 challenging the order  

dated  May  4,  1998  by  which  his  services  were  

terminated by the appellant.  The Bombay High Court,  

Nagpur  Bench,  by  judgment  dated  April  17,  2000,  

dismissed  the  said  writ  petition  with  the  observation  

that  the  respondent  No.  2  was  not  interested  in  

proceeding further with the inquiry before the Scrutiny  

Committee and was delaying the entire proceedings on  

some or the other pretext.

3. After dismissal of the writ petition, the respondent  

No. 2 appeared before the Scrutiny Committee on  

April  24,  2000,  but  prayed  to  grant  time.  

Therefore,  the Scrutiny Committee adjourned the  

hearing to June 26, 2000.  On the said date also  

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the  respondent  No.  2  requested  for  more  time,  

which  was  granted  by  the  Scrutiny  Committee.  

Thereafter,  the  respondent  No.  2  did  not  appear  

before the said Committee at all and, therefore, the  

Scrutiny Committee decided to close the matter of  

verification of tribe claim of the respondent No.2,  

by order dated November 13, 2000.  After a lapse  

of about three years from the date of dismissal of  

Writ Petition No. 879 of 1999, the respondent No.2  

applied  to  the  Government  to  reinstate  him  in  

service claiming that he belongs to S.B.C. category  

and should be granted protection of  Government  

Resolution  dated  June  15,  1995.   The  said  

Resolution  dated  June  15,  1995,  inter  alia,  

specifies as to which Caste should be considered  

as  Special  Backward  Class.   The  Rural  

Development and Water Conservation Department  

of  the  Government  of  Maharashtra,  therefore,  

addressed a letter dated February 6, 2002 to the  

appellant  stating  that  the  respondent  No.  2  was  

appointed  as  Assistant  Teacher  by  order  dated  

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October 6, 1992 (correct date of the appointment is  

January  16,  1993)  by the  appellant  on the post  

reserved  for  Scheduled  Tribe  and  even  if  the  

certificate indicating that he belongs to Scheduled  

Tribes was invalidated by the Scrutiny Committee,  

he would be entitled to get protection in service in  

view  of  Government  Resolution  dated  June  15,  

1995  because  he  has  submitted  a  validity  

certificate  indicating  that  he  belongs  to  Special  

Backward Class.  By the said letter the appellant  

was  directed  to  take  necessary  action  in  the  

matter.   In  spite  of  the  protection  given  by  the  

Government,  the  respondent  No.  2  was  not  

reinstated  in  service.   Therefore,  he  filed  Writ  

Petition  No.  1764  of  2003  challenging  the  order  

dated May 4, 1998 terminating his services.  The  

Division Bench of the High Court of Judicature at  

Bombay, Nagpur Bench, has allowed the same by  

judgment dated August 31, 2004, giving rise to the  

instant appeal.

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4. This Court has heard the learned counsel for the  

parties  and  considered  the  documents  forming  

part of the appeal.

5. From the record, it is evident that the stand of the  

respondent No. 1, i.e., the State of Maharashtra, is  

that  the  respondent  No.  2  is  entitled  to  the  

protection  of  Government  Resolution  dated  June  

15, 1995.  The well settled principle of law is that  

once  the  certificate  indicating  that  a  person  

belongs to  Scheduled  Tribe  is  invalidated  by the  

Caste  Scrutiny  Committee,  his  appointment  

becomes  void  from  the  beginning.   The  void  

appointment could not have been validated by the  

Government by addressing a communication to the  

appellant.   The  case  of  the  appellant  before  the  

High Court was that from the quota made available  

to  Special  Backward  Class  candidates,  the  post  

was  filled  up  and no vacant  post  was  available.  

However, the High Court, by order dated December  

16, 2003, directed the appellant to place a staffing  

pattern  including  the  sanctioned  posts  available  

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and the occupation thereof by different candidates  

and  clarified  that  the  writ  petition  filed  by  the  

respondent No. 2 would be heard thereafter finally  

at the stage of admission.   

6. In view of the above mentioned direction given by  

the High Court the appellant furnished necessary  

particulars  by  filing  reply.   In  the  reply  it  was  

pointed  out  that  the  Education  Officer,  Primary,  

Z.P., Buldhana vide letter dated January 2, 2004  

had informed the appellant that in the category of  

Secondary School Teachers, there were four posts  

reserved for S.B.C. and all of them were filled up as  

under: -

LOWER GRADE ASSISTANT TEACHER

S.No. Caste Sanctioned Posts Vacant  Posts

   Posts     filled in   

1. Open       155   146 09

2. S.B.C.         04     04  --

S.B.C.: -

1. Sunil Meharkar 2. Ku. Jyoti Dnyaneshwar Thakre-Palshi Bu.

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3. Ku.  Jyoti  Prabhakar  Bawatkar-Mangrul  Nawaghare

4. Vilas Sitaram Wawre

Though  these  particulars  were  placed  before  the  

Division Bench of the High Court by way of reply filed  

on behalf of the appellant, the Division Bench did not  

record any finding as to whether the posts reserved for  

Special Backward Class were available or not and has,  

by  the  impugned  judgment,  directed  the  appellant  to  

reinstate  the  respondent  No.  2  in  service  forthwith  

pursuant to order dated February 6, 2002, passed by  

the  Government  with  back  wages  from  the  date  of  

passing of  the order by the State Government and to  

grant  the  benefit  of  continuity  in  service  on  

reinstatement.   What is  relevant to notice is  that  the  

data, which was produced by the appellant before the  

Division Bench of the High Court by filing reply, which  

indicated  that  no  S.B.C.  post  was  available,  was  not  

controverted by the State of  Maharashtra at all.   The  

record shows that pursuant to the judgment of the High  

Court, impugned in this appeal, the respondent No. 2  

has  already  been  reinstated  in  service.   The  record  

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would  also  show  that  the  respondent  No.  2  was  in  

service from January 16, 1993 till  May 4, 1998 when  

his services were terminated as his Caste Certificate was  

invalidated by the Caste Scrutiny Committee.  Again, he  

is in service after impugned judgment was rendered on  

August  31,  2004 till  date  and,  therefore,  it  would  be  

harsh to direct termination of services of the respondent  

No. 2.  This Court further finds that Government had  

passed the order on February 6, 2002 on the basis of  

certificate  produced  by  the  respondent  No.  2,  which  

indicated that  he  belongs to  Special  Backward Class.  

The  record  also  shows  that  he  had  produced  this  

Certificate  dated  June  12,  2002  indicating  that  he  

belongs  to  Special  Backward  Class  before  the  

appointment, but the appellant had not taken any steps  

to get it verified through the Caste Scrutiny Committee.  

In view of the fact that no post belonging to the Special  

Backward Class category is available with the appellant,  

this Court is of the opinion that interest of justice would  

be  served  if  the  Government  is  directed  to  create  

supernumerary post in the appellant No. 1 institution to  

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accommodate the respondent No. 2 with liberty to get  

the  said  Caste  Certificate  verified  through  the  Caste  

Scrutiny Committee.

7. For  the  foregoing  reasons  the  appeal  partly  

succeeds.   The  respondent  No.  1,  i.e.,  State  of  

Maharashtra,  is  directed  to  create  a  

supernumerary  post  in  the  appellant  No.  1  

institution to accommodate the respondent No. 2  

as  early  as  possible  and  preferably  within  two  

months from the date of receipt of the writ from  

this  Court.   It  would  be  open  to  the  State  of  

Maharashtra  and the  appellant  to  get  the  Caste  

Certificate dated June 12, 2002, submitted by the  

respondent  No.  2,  indicating  that  he  belongs  to  

Special  Backward  Class,  verified  from  the  Caste  

Scrutiny  Committee.   If  the  Caste  Scrutiny  

Committee comes to the conclusion that the Caste  

Certificate  submitted by the  respondent No.  2 is  

valid,  he  would  be  continued  in  service  and  

granted  all  benefits  except  back  wages  from  

February 6, 2002 to the date of his reinstatement  

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in service pursuant to the impugned judgment.  If  

the claim made by the respondent No. 2 that he  

belongs to Special Backward Class is not upheld  

by  the  Caste  Scrutiny  Committee,  the  appellant  

would  be  entitled  to  take  appropriate  action  

against him in accordance with law.

8.  Subject  to  above  mentioned  observations  and  

clarifications the appeal stands disposed of.  There  

shall be no order as to costs.

…………………………J. [J.M. Panchal]

……………….….………J. [Mukundakam Sharma]

New Delhi; April 22, 2010  

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