GANESH RAMBHAU KHALALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Having noticed divergent views expressed in two judgments delivered by co-ordinate Benches of this Court the instant writ petitions are referred to this Bench of three Judges which involve a common question of law. The reference is in relation to giant or refusal of protection to candidates appointed or admitted prior to 20.11.2000 against the posts reserved for scheduled tribe/scheduled caste category of the backward class on cancellation of their caste/tribe certificates pursuant to the verification of caste claim by the Scrutiny Committee. Before we proceed to deal with the relevant issue it would be appropriate to refer to the views taken in the two judgments. The judgment first in point of time is in Writ Petition No. 853 of 2007 (Union of India & ors. Vs. Deepak Y. Gotefode), 2007(6) Bom.C.R. 586. The respondent in the said writ petition was appointed as lower division clerk against a post reserved for scheduled tribe. In Clause 20 of the letter of appointment issued to the respondent it was specifically stated that the appointment was provisional and was subject to caste/tribe verification. The letter of appointment made it further clear that if the caste certificate is found to be false, the services of the respondent would be liable to be terminated without assigning any reason. A copy of the caste/tribe certificate was forwarded to the Caste Scrutiny Committee, Nagpur and despite repeated demands from the Committee the respondent did not produce the original certificate. Hence ultimately on consideration of all the relevant factors the caste/tribe certificate came to be cancelled and confiscated, on the basis of which the respondent had sought the appointment. Aggrieved thereby the respondent filed an original application before the Central Administrative Tribunal and the Central Administrative Tribunal having allowed the same, the Union, of India preferred writ petition in the High Court which in turn was allowed by the High Court quashing the judgment and order passed by the Tribunal. While reversing the judgment of the Tribunal the High Court held that the respondent had sought the appointment by misrepresentation and hence cannot be permitted to take advantage of his own wrong. It is also held that as the appointment was procured by playing fraud by producing false caste certificate the respondent cannot be said to be holding the post within the meaning of Article 311 of the Constitution of India. The said appointment has been held to be void since its inception. While allowing the application the Tribunal had placed reliance on a judgment of the Supreme Court reported in the case of (State of Maharashtra Vs. Milind & ors.), A.I.R. 2001 S.C. 393 and had held that the respondent (before the High Court) was entitled to the relief prayed for.

(2.) The later Division Bench judgment is in Writ Petition No. 3980 of 2006 along with batch of other connected writ petitions in the case of (Prashant Haribhau Khawas Vs. State of Maharashtra & ors.), 2008(6) Bom.C.R. (N.B.)190 wherein the Division Bench has considered the issue of grant of protection to number of petitioners in relation to appointments in the light of the observations made by the Supreme Court in the case of State of Maharashtra Vs. Milind & ors. The Division Bench has decided the question in favour of the petitioners before it and granted protection to the appointments by placing reliance on the observations made by the Supreme Court in para 36 (para 38 of Bom.C.R.) of the said judgment. The Division Bench after noticing the fact that all the petitioners were appointed prior to the date of the judgment rendered by the Supreme Court in State of Maharashtra Vs. Milind it held that the petitioners are entitled to the protection sought for. The Division Bench has also held that observations made in para 36 (para 38 of Bom.C.R.) of the said judgment is 'Law declared by the Supreme Court' and hence proceeded to follow the same. Thus in substance two fold findings are recorded:

(3.) Three writ petitions are placed before this Full Bench, two of which pertain to seeking protection of appointments whereas one relates to admission. It is undisputed that all the three petitioners are appointed/admitted prior to the date of the Supreme Court judgment, the date being 28.11.2000. Besides deciding the above referred question the later Division Bench has also considered the question of grant of protection to appointments made or admissions granted prior to 15:6.1995 in the light of the Government Resolution but this issue has not been argued before us as in the facts of the present petitions it does not arise for consideration, as the petitioners are appointed/admitted after 15.6.95, viz. the cut of date, hence we are not called upon to decide the said question.