CHIEF EXECUTIVE OFFICER, ZILLA PARISHADversusSTATE OF MAHARASHTRA & OTHERS

                     [2010] 5 S.C.R. 127


     CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD                       A
                               v.
          STATE OF MAHARASHTRA & OTHERS
             {Civil Appeal No. 2048 of 2007)
                       APRIL 22, 2010
                                                                   B
                   •
 [J.M. PANCHAL AND DR. MUKUNDAKAM SHARMA, JJ.]
                               •
        Service Law - Termination - Respondent no. 2
  appointed as temporary Assistant Teacher in Scheduled
  Tribes category - Tribe Certificate produced by him found        C
  invalid by Scheduled Tribe Caste Scrutiny Committee -
  Consequent termination of respondent no.2 - He applied to
· Government to reinstate him in service claiming that he
  belonged to S. B. C. (Special Backward Class) category and
  seeking protection under a Government Resolution which           D
  inter alia, specified the castes considered as SBC -
  Government directed the appellant to take necessary action
  in favour of respondent no.2 in view of the said Resolution -
  Respondent no. 2, however, not reinstated in service - Writ
  petition filed by him allowed by High Court - On appeal, held:   E
  Once the Scheduled Tribe certificate produced by respondent
  no.2 was invalidated by the Caste Scrutiny Committee, his
  appointment became void from the beginning - The void
  appointment could not have been validated by the
  Government -However, on peculiar facts, it would be harsh        F
  to direct the termination of respondent no.2 since he is in
  service till date after the impugned judgment was rendered
  by High Court - Since no post belonging to SBC category is
  available with appellant, in interest of justice, Government
  directed to create supernumerary post to accommodate             G
  respondent no. 2 with liberty to get the SBC Caste Certificate
  produced by him verified through the Caste Scrutiny
  Committee - Consequential directions given.
     Respondent no. 2 was appointed as a temporary
                              127                                  H
    128      SUPREME COURT REPORTS                [2010] 5 S.C.R.

A Assistant Teacher in the Scheduled Tribes category,
  subject to verification of his tribe claim. The tribe
  Certificate produced by respondent no. 2 was forwarded
  for verification to the Scheduled Tribe Caste Scrutiny
  Committee, which found the said certificate to be invalid.
B Consequently the services of respondent no.2 were
  terminated.
         Subsequently, Respondent No.2 applied to the
    Government to reinstate him in service claiming that he
    belongs to S.B.C.(Special Backward Class) category and
C   should be granted protection of Government Resolution
    dated June 15, 1995, which inter alia, specified the Castes
    considered as SBC. The Government addressed a letter
    to the appellant stating that even if the certificate
    indicating that respondent no.2 belongs to Scheduled
D   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
    _had submitted a validity certificate indicating that, he
    belongs to Special Backward Class, and accordingly
E   directed the appellant to take necessary action in the
    matter. lnspite of the protection given by the Government,
    respondent no.2 was not reinstated in service. Therefore,
    he filed writ petition challenging the order terminating his
    services, which was allowed by the High Court. Hence
F   the present appeal.                           ·
          Partly allowing the appeal, the Court
      HELD: 1.1. The well settled principle of law is that
  once the certificate indicating that a person belongs to
G 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
H before the High Court was that from the quota made
 CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD v.           129
          STATE OF MAHARASHTRA
available to Special Backward Class (SBC) candidates, A
the post was filled up and no vacant post \'Yas available.
There·Jpon, the High Court directed the appellant to place
a staffing pattern including the sanctioned posts available
and the occupation thereof by different candidates. In
view of the above mentioned direction given by the High B
Court, the appellant furnished necessary particulars by
filing reply. In the reply it was pointed out that the
Education Officer, Primary, Z.P. had informed the
appellant that in the category of Secondary School
Teachers, there were four posts reserved for S.B.C. and c
all of them were filled up. Though these particulars were ..
placed before the High Court by way of reply filed on
behalf of the appellant, the High Court did not record any
finding as to whether the posts reserved for Special
Backward Class were available or not and, directed the
                                                            0
appellant to reinstate the respondent No. 2 in service
forthwith pursuant to order 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; even though the E
data produced by the appellant before the High Court by
filing reply, which indicated that no S.B.C. post was
available, was not controverted by the State Government
at all. [Paras 5, 6] [133-G-H; 134-A-E; 135-A-C]
     2. The record shows that pursuant to the judgment       F
of the High Court, impugned in this appeal, the
respondent No. 2 has already been reinstated in service.
The record would also show that the respondent No. 2
was in service for the period 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, till date and, therefore,
it would be harsh to direct termination of services of the
respondent No. 2. Further the Government had passed
the order on the basis of certificate produced by the
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        130      SUPREME COURT REPORTS              [2010) 5 S.C.R.


    A respondent No. 2, which indicated that he belongs to
      Special Backward Class. The record also shows that he
      had produced this Certificate indicating that he belongs
      to SpeciaJ Backward Class before the ,appointment, but
      the appellant had not taken any steps to get it verified
    B through the Caste Scrutiny Committee. [Para 6) [135-C-
      F]
             3. In view of the fact that no post belonging to the
        Special Backward Class category is available with the
        appellant, interest of justice would be served if the
    C   Government is directed to create supernumerary post in
        the appellant No. 1 institution to accommodate the
        respondent No. 2 with liberty to get the said Caste
        Certificate verified through the Caste Scrutiny Committee.
        Consequently, the respondent No. 1, i.e., State of
    D   Maharashtra, is directed to create a supernumerary post
        rn the appellant No. 1 institution to accommodate the
        respondent No. 2. It would be open to the State of
        Maharashtra and the appellant to get the Caste Certificate
        submitted by the respondent No.· 2, indicating that he
    E   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
    F   except back wages to the date of his reinstatement in
0       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
    G   appropriate action against him in accordance with law.
        [Paras 6, 7) [135-F-H; 136-A, c~D]
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.
        2048 of 2007.
              From the Judgment & Order dated 31.8.2004 of the High
    H
 CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD v.                    131
          STATE OF MAHARASHTRA
Court of Judicature at Bombay, Bench at Nagpur in Writ f'etition     A
No. 1764 of 2003.

     M.S. Nargolkar, Anagha Desai, Venkateswara Rao,
Anrnolu, b.M. Nargolkar, Sanjay V. Kharde, (for Asha G. Nair)
for the appearing parties.                                           B
     The -!_udgment of the Court was delivered by

      J.M. PANCHAL, J. 1. The challenge in this appeal is to
the judgment dated August 31, 2004, passed by the Division
Bench ofc the High Court of Judicature at Bombay, Nagpur             c
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:         D

      Claiming that he belongs to Scheduled Tribe, the
responqent 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            E
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         F
(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 November6, 1997. The respondent No. 2 was             G
holding the post of Assistant Teacher temporarily, which was
specifically reserved for Scheduled Tribe. Therefore, 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          H
    132     SUPREME COURT REPORTS                [2010) 5 S.C.R.


A High Court. He challenged the order terminating his services
   as weU 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
B 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
c Committee to decide the matter afresh after affording
   necessary opportunity of hearing to him. The Court fw:ther
   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
D Scrutiny Committee on January 29, 1999, but requeste~. 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
E 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
F 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.
G 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
  the respondent No. 2 requested for more time, which was
  granted by the Scrutiny Committee. Thereafter, the respondent
H No. 2 did not appear before the said Committee at all and,
 CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD v.                   133
  STATE OF MAHARASHTRA [J.M. PANCHAL, J.)
therefore, the Scrutiny Committee decided to close the matter        A
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
 respor~dent No.2 applied to the Government to reinstate him
in service claiming that he belongs to S.B.C. category and           B
should be granted protection of Government Resolution dated
June 15, 1995. The said,ResQlution 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,            c
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 October 6;-'1992 (correct date
vf the appointment is January 16, 1993) by the appellant on the
post reserved for Scheduled Tribe and even if the certificate        D
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
                                                                     E
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              F
Bench, has allowed the same by judgment dated August 31,
2004, giving rise to the instant appeal.

    4. This Court has heard the learned counsel for the parties
and considered the documents forming part of the appeal.             G

    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        H
    134          SUPREME COURT REPORTS               (20101 5 S.C.R, ·


A 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 appointmer:)t could not have been validated by the .
  Government by addressin9·a communication to the appellant. ·
B 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
c including the sanctioned posts available 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
D 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
E 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
F
      1.          Open     155          146         09
      2.          S.B.C.   04           04

           S.B.C.: -
G
            1.     Sunil Meharkar
            2.     Ku. Jyoti Dnyaneshwar Thakre-Palshi Bu.
            3.     Ku. Jyoti Prabhakar Bawatkar-Mangrul Nawaghare
            4.     Vilas Sitaram Wawre
H
 CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD v.               135
  STATE OF MAHARASHTRA [J.M. PANCHAL, J.]
Though these particulars were placed before the Division A
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
av~tilable or not and has, by the impugned judgment, directed
the appellant to reinstate the respondent No. 2 in service B
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    c
the Division Bench of the High Court by filing reply, which
 1dicated that no S.B.C. post was available, was not
controverted by the State of Maharashtra at all. The record
shows Jhat pursuant to the judgment of the High Court;
impugned in this appeal, the respondent No. 2 has already been D
reinstated in service. The record 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 E
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 F
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 G
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
accvmmodate the respondent No. 2 with liberty to get the said
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    136      SUPREME COURT REPORTS                [2010] 5 S.C.R.


A   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
B 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 ·
C 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
D to the date of his reinstatement 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.
E
          8. Subject to above mentioned observations and
    clarifications the appeal stands disposed of. There shall be no
    order as to costs.

    B.B.B.                                 Appeal partly allowed.