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High Court Of ChhattisgarhWPS/119/2017allowed

Kamlesh Kumar Hedau v. State Of Chhattisgarh

2017-03-16Hon'Ble Shri Justice P. Sam Koshy5 pages

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No. 119 of 2017 • Kamlesh Kumar Hedau S/o Late Shri Chamru Das Hedau, Aged About 46 Years R/o Q. No. B-11 Stationpra, Ward No.7, Kusum Nagar Madliyaadchal Post & Tehsil Rajnandgaon, District Rajnandgaon (Chhattisgarh), Presently Posted As Accountant, Block Education Officer, Dongargaon, District Rajnandgaon, (Chhattisgarh) ---- Petitioner

Versus

1. State Of Chhattisgarh Through Secretary, G A D, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur, (Chhattisgarh)

2. Secretary, School Education, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (Chhattisgarh)

3. High Level Cast Scrutiny Committee, Pandit Deendayal Upadhayey Nagar, Sector 4, District Raipur, (Chhattisgarh)

4. Collector, Rajnandgaon, District Rajnandgaon, (Chhattisgarh)

5. District Education Officer, Education Department, District Rajnandgaon, (Chhattisgarh) ----Respondents For Petitioner:

Mr. Sourabh Dangi, Advocate For State :

Mr. Gary Mukhopadhyay, Dy. Government Advocate Hon'ble Shri Justice P. Sam Koshy Order on Board 16.03 .2

1. The present Petition has been filed assailing the order dated 26.12.2016 (Annexure P1) passed by the High Level Caste Scrutiny Committee constituted in the State of Chhattisgarh whereby the committee has held that the Petitioner does not belong to Halba Scheduled Tribe but is a Koshti and has thus ordered for cancellation of the caste certificate issued by the Nayab Tehsildar, Rajnandgaon in favour of the Petitioner on 23.03.1993, on the basis of which he has obtained employment

with the Respondents. He prayes for issuance of appropriate writ in the light of judgment rendered by the Supreme Court in the case of State of Maharshtra vs. Milind & Others [2001 (1) SCC 4] so far as protection of his employment under the Respondents.

2. The Counsel for the Petitioner further submits that the present Writ Petition may be disposed off in the light of the decision rendered by this Court in Writ Petition (S) No. 147/2016 and other connected matters decided on 01.07.2016, which has also been affirmed by the Division Bench in Writ Appeal No. 531/2016 and other connected matters decided on 14.02.2017.

3. The brief facts of the case is that the Petitioner in the instant case was appointed as LDC on 17.01.1994 under the erstwhile State of Madhya Pradesh. As a result of bifurcation of the State of Madhya Pradesh and creation of State of Chhattisgarh the services of the Petitoiner stood allocated to the State of Chhattisgarh in the year 2000. The Petitioner had obtained employment claiming himself to be belonging to the scheduled tribe that of caste of Halba Koshtis / Koshti. The Petitioner had got Caste Certificate issued in his favour by the Nayab Tehsildar, Rajnandgaon on 23.03.1993 whereby he was declared to be a member of the Halba Scheduled Tribe. The caste status of the Petitioner was meanwhile subjected to the verification by the High Level Caste Scrutiny Committee constituted by the State of Chhattisgarh. The report of the said committee was that the Petitioner is a Koshti by caste and that the caste certificate of the Petitioner of being a "Halba" was not proper and correct.

4. The State Government in between issued an instruction dated

01.10.2011 whereby they took a policy decision of not terminating services of the similarly placed persons where the dispute was of Halba Koshtis/ Koshti caste except the fact that they would not be entitled for any benefit of reservation in their services. This instruction meanwhile was cancelled by the order dated 11.01.2016 and there is every likelihood of the services of the Petitioner to be terminated. The contention of the Petitioner is that the services of the Petitioner deserves to be protected in the light of the judgment passed by the Supreme Court in the case of State of Maharshtra vs. Milind & Others [2001 (1) SCC 4].

5. According to the Counsel for the Petitioner the said ratio laid down in the case of Milind (supra) has been further followed and reiterated by the Supreme Court in the case of Punjab National Bank & Another v. Vilas [2008 (14) SCC 545], Kavita Solunke v. State of Maharashtra [2012 (8) SCC 430] and also in Shalini v New English High School Association & Others [2013 (16) SCC 526] etc.

6. According to the Petitioner considering the fact that the Petitioner was appointed around 24 years back, applying the ratio referred to in the aforesaid judgments the services of the Petitioner has to be protected treating him to be an employee in the unreserved category wherein he would not be entitled for any benefits of reserved category.

7. According to the Petitioner it is not the case of any of the Respondents that the Petitioner has obtained the caste certificate by playing fraud and any misrepresentation. Rather the Petitioner has bonafidely obtained the caste certificate. According to the Petitioner, had the impugned order dated

11.01.2016 not been issued the Petitioner would have got the advantage of protection of the service as per the circular dated 01.10.2011.

8. At this juncture the Counsel for the Petitioner submits that so far as the circular dated 11.01.2016 is concerned the same was already subjected to challenge in a bunch of Writ Petitions which were decided by the Coordinate Bench of this Court on 01.07.2016, the lead case being Writ Petition (S) No. 147/2016 and analogues petitions. All these Writ Petitions were allowed and the order dated 11.01.2016 was held bad in law to the extent of issuance of directions in taking action against the persons who were going to get the protection of employment on the basis of the instruction dated 01.10.2011.

9. It was also contended by the Petitioner that the said judgment dated 01.07.2016 passed by the single bench of this Court was subjected to challenge in a bunch of Writ Appeal lead among which being the Writ Appeal No. 531/2016. The Division Bench upholding the judgment of the Single Bench, only clarified the entitlement of the instruction dated 01.10.2011 and notification dated 11.01.2016 to the extent that the protection of service under similar circumstances can be extended to only those employees who have obtained employment prior to 28.11.2000 i.e. the date on which the judgment of the Supreme Court in the case of Milind was pronounced. In other words the Division Bench has clarified it holding the benefits of protection of service may not be applied to those persons / employees/ Petitioners who have obtained employment subsequent to 28.11.2000. The Petitioner herein admittedly was given appointment much prior to

the judgment of Milind being passed i.e. on 17.01.1994.

10. Learned Counsel for the State perusing the record does not dispute the fact that the present case also is squarely covered by the two decision of the Single Bench as well as the Division Bench of this Court. The state Counsel also does not dispute the facts and has no objection if the present Petition also is decided in similar terms.

11. In view of the submissions made by the Counsel appearing on either side and taking into consideration the judgment dated 01.07.2016 passed by the Coordinate Bench of this Court and which has been further affirmed by the Division Bench vide its judgment dated 14.02.2017, this Court has no hesitation in reaching to the conclusion that since the Petitioner's appointment also was prior to 28.11.2000 the Petitioner is also entitled for the protection of his employment in similar terms. 12.In view of the same the present Writ Petition stands allowed to the extent that the Petitioner shall be entitled for protection of his service as has been given to other similarly placed persons by the Government of Chhattisgarh pursuant to the instruction dated 01.10.2011. However, the Petitioner shall not be entitled for any benefits of reservation.

13. The Present Writ Petition stands allowed. Sd/- (P. Sam Koshy) JUDGE kishore