The State Of Maharashtra Through The Principal Secretary And ANR. v. Shri Maruti Limbaji Karangale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 363 OF 2016 The State of Maharashtra & Anr.
...Petitioners
Versus
Shri. Maruti Limbaji Karangale
...Respondent
Mr. N.C. Walimbe, AGP for the State/Petitioner. Mr. Bhushan A. Bandiwdekar for Respondent.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. & M. S. SONAK, J.
Date : 31st July, 2018.
ORAL JUDGMENT :
1] Heard the learned counsel for the parties.
2] Rule. With the consent of and at the request of the learned counsel for the parties, Rule is made returnable forthwith.
3] The challenge in this petition is to the judgments and orders dated 20.04.2015 and 31.07.2015 made by the Maharashtra Administrative Tribunal (MAT), Mumbai in Original Application No. 957 of 2011 instituted by the
respondent.
4] The order dated 20.04.2015 made by the MAT is not very relevant, in as much as the said order was more in the nature of an interim direction to the petitioners to respond to the petitioner's representation in the matter of denial of promotion from the post of Sub Treasury Officer in District Treasury, Pune to Maharashtra Finance and Accounts Services, Class-II (Gazetted) Cadre. (Promotional Post). The relevant judgment and order is the one dated 31.07.2015, by which the MAT has quashed the communication dated 10.12.2010 in which the petitioners had indicated the reasons for non consideration of the case of the respondent for promotion to the promotional post and directed the petitioners to consider the case of the respondent for promotion from the "General/Open Category".
5] Operative portion of the impugned judgment and order dated 31.07.2015 reads as follows :- "18. The communication Ex-A to this O.A. dated 10.12.2010 and the communication eizU;k 2014@iz-dz- 188 dks"kk
iz'kk&2] foRr foHkkx] ea=ky;] eqacbZ] fnukad 05-06-2015 are hereby quashed and set aside. The respondents are directed to reconsider the issue of grant of promotion to the applicant from open/general category in the D.P.C. held on 27th October, 2008 (Ex. R.II), page 79 of the P.B. If found fit the applicant be given promotion with effect from an appropriate date bearing in mind that the applicant claims it from 31.05.2010. Consequential benefits if any be also given to the applicant. Special DPC be convened if need be and compliance herewith be made within three months from today and the applicant be informed the decision within one week thereafter."
6] Mr. Walimbe, the learned AGP for the petitioners - State submits that, the respondent's initial appointment to the clerical grade w.e.f. 24.06.1982 was against a reserved post since, respondent had indicated that he belongs to Hindu-Samagar (Chambar) caste, which was recognized as Scheduled Caste in his home town in District Belgaum, Karnataka State. Mr. Walimbe submits that even the promotion of the respondent was on the basis that he belongs to reserved category and the respondent had even filed an undertaking to produce caste validity certificate from the competent authority. Mr. Walimbe points out that, since, such caste validity certificate was never produced, the case of the respondent could not be considered for further promotion to the promotional post. Mr. Walimbe, makes reference to communication dated 14.02.2013 and
Government Resolution dated 18.10.1997 to point out that policy of reservation applies at the stage of promotions. Mr. Walimbe, also makes reference to Maharashtra Finance and Accounts Services, Group C posts (Recruitment) Rules, 1996 (for short, 1996 Rules) in support of his contentions. For all these reasons, Mr. Walimbe submits that the impugned judgments and orders made by the MAT warrant interference.
7] Mr. Bandiwadekar, learned Counsel for the respondent points out that, though the respondent at the stage of his appointment as a clerk in the year 1982 had indicated that he belongs to Scheduled Caste from Karnataka, there is absolutely nothing on record to indicate that the respondent had been appointed as a clerk against reserved post. He points out that the promotion of the respondent to the post of Sub Treasury Officer, was clearly not against any reserved post. He points out that, in terms of the 1996 Rules referred to by Mr. Walimbe, the respondent was very much eligible for promotion to the promotional post, particularly since his juniors were promoted to the said posts.
8] Mr. Bandiwadekar, submits that, the petitioners were not at all justified in declining to even consider the case of the respondent for promotion to the promotional post on the spacious plea that the respondent had failed to produce his caste validity certificate. He submits that, since, the respondent was not a Scheduled Caste in relation to the State of Maharashtra and since, the respondent was claiming promotion under the open category, which he was entitled to, the petitioners were entirely unjustified in refusing even to consider the case of the respondent for promotion.
9] Mr. Bandiwadekar submits that there is no jurisdictional error or perversity in the view taken by the MAT and therefore, this petition is liable to be dismissed. He submits that, the view taken by the MAT is quite consistent with the judgment and order dated 30.03.2015 made by the Division Bench of this Court in Suresh S/o Pahadsingh Hakumdar Vs. State of Maharashtra & Ors. (WP No. 1310 of 2014) and the decision of the Hon'ble Supreme Court in the case of Marri Chandra
Shekhar Rao Vs. Dean, Seth G.S. Medical College and Ors. (1990) 3 SCC 130. For all these reasons, Mr. Bandiwadekar submits that this petition may be dismissed. 10] The rival contentions now fall for our determination.
11] There is nothing concrete on record to indicate that, the respondent's initial appointment as a clerk way back on 24.06.1982 was against a post reserved for Scheduled Castes. Merely because the respondent, in his application seeking employment had furnished all particulars, including that he belongs to the Hindu-Samagar (Chambar) caste, which is recognized as a Scheduled Caste in the State of Karnataka, that by itself cannot lead to some invariable inference that the respondent had secured employment to the reserved category.
12] The petitioners are quite categorical in that, they do not question the initial appointment of the respondent as a clerk w.e.f. 24.06.1982. From 1982 till the date the respondent retired on attaining the age of superannuation,
no issues were raised as regards the respondent's initial appointment as a clerk. At no stage was it the case of the petitioners that the respondent secured appointment to a reserved post, even though, the caste certificate produced by him was in relation to his State or State of Karnataka and not in the State of Maharashtra. All these factors indicate that even though the respondent may have belonged to a Scheduled Caste in relation to State of Karnataka, he was appointed as a clerk way back on 24.06.1982 in the State of Maharashtra against an unreserved post.
13] The aforesaid inference is further strengthened by the fact that the order promoting the respondent as a Sub Treasury Officer (Non-Gazetted Post) also does not indicate that such promotion was against some quota reserved for Scheduled Caste category. Again, the petitioners, do not even question the promotion of the respondent to the post of Sub Treasury Officer in the District Treasury, Pune.
14] The communications dated 14.02.2013 or 18.10.2017 at the highest indicate that the policy of
reservation is applicable at the stage of promotions. The communications and the Government Resolutions at the highest indicate that promotions have to be effected on the basis of roster, particularly when promotions have to be effected against Open/General and reserved quota. However, none of these documents indicate that factually the respondent was promoted as Sub Treasury Officer against any reserved quota. There is no serious dispute that the respondent's promotion as Sub Treasury Officer was on merits after candidatures of all other officers who fell within zone of consideration were duly considered by the DPC.
15] Insofar as the promotional post is concerned, the promotions to the same are governed by 1996 Rules. Mr. Walimbe had laid particular emphasis upon Rule 3 (b) which reads as follows :- "3.
Appointment to the posts in the Maharashtra Finance and Accounts Service, Group C in the Directorate shall be made either,- (a) by promotion of a suitable person on the basis of seniority subject to fitness from amongst persons holding the posts of (I) Assistant Superintendent or Assistant Stores Inspector in the Directorate and under its offices at Regional levels (ii) Assistant Superintendent or Selection Grade Clerk or District Village Panchayat Auditor (Grads II)
in the office of the Chief auditor, Local Fund Accounts and his offices at Regional Level ; (iii) Selection Grade Clerk in the Pay and Accounts Office, Mumbai, and (iv) Deputy Accountant for SubTreasury Officer (Non-Maharashtra Finance and Accounts Service, Group C) in the District Treasury Offices; or (b) by selection of a person serving in any Government Department or office who has passed in merit the Maharashtra Finance and Accounts Service Class III competitive Examination."
[Emphasis Supplied] 16] There is no dispute, that the respondent seeks promotion in terms of Rule 3 (b) of the 1996 Rules. There is also no dispute that the respondent has passed in merit, the Maharashtra Finance and Accounts Services Class III competitive Examination. There is also no dispute that the respondent falls in the zone of consideration for promotion to the promotional post. This is clear from the fact that by order dated 31.05.2010, officers junior to the respondent came to be promoted to the promotional post. By communication dated 10.12.2010 however, the respondent was informed that his case could not be considered for promotion because the respondent had failed to produce the caste validity certificate from the relevant
authorities within the State of Maharashtra.
17] Since, there is nothing on record to indicate that the respondent came to be initially appointed or later on promoted against the reserved category, the petitioners were obviously not justified in refusing to even consider the case of the respondent for promotion to the promotional post on the spacious plea that the respondent had failed to produce caste validity certificate.
18] The respondent, had time and again made it clear that he was not a Scheduled Caste in relation to the State of Maharashtra and therefore, he was not seeking promotion against any reserved post. The respondent had time and again made it clear that, he was seeking promotion from the Open/General category consistent with the Rules, 1996. The record indicates that the respondent had fulfilled the qualifications and the eligibility criteria prescribed in the 1996 Rules. The record also indicates that, persons junior to the respondent were considered and in fact promoted on
31.05.2010 to the promotional post.
19] Taking into consideration all such circumstances, the MAT was quite justified in quashing the communication dated 10.12.2010 and directing the petitioners to consider the case of the respondent for promotion to the promotional post through the Open/General category.
20] The MAT has quite correctly relied upon the ruling of the Division Bench in the case of Suresh S/o Pahadsingh Hakumdar (Supra). The facts and circumstances in the said case are quite similar to the facts and circumstances in the present case. In Suresh S/o Pahadsingh Hakumdar (Supra) the Division Bench has categorically held that, no embargo can be placed even upon reserved category candidate to compete for promotion to a post in the Open/General Category. The Division Bench has relied upon the ruling of the Hon'ble Apex Court in the Case of Kasambhai F. Ghanchi V. Chandubhai D. Raput (1998) 1 SCC 285 and also in the case of Bihari Lal Rada Vs. Anil
Jain (Tinu) and Ors. (2009) 4 SCC 1 in which it is held that the unreserved seat, euphemistically described as general category seat or open seat is available for all candidates irrespective of their caste who are otherwise qualified to contest to that office.
21] In the facts of the present case, the petitioners were aware, that the respondent belongs to the Hindu-Samagar (Chambar) caste in relation to the State of Karnataka. This fact was never suppressed at any stage by the respondent. Rather this position was made very clear by respondent right from the outset. The respondent, realizing that the certificate issued by the officials in the State of Karnataka will not ennure for benefit of reservations in the State of Maharashtra, has time and again made it clear that he was not claming promotion to any reserved quota.
22] In Marri Chandra Shekhar Rao (Supra) the Hon'ble Supreme Court has clarified that the expressions "for the purpose of this Constitution" and "in relation to that State" as they appear in Articles 341
and 342 of the Constitution of India mean and imply that a person who is recognized as a member of ST/SC in his original State will be entitled to all the benefits under the Constitution in that State alone and not in all parts of the country wherever he migrates. In such circumstances, the insistence on the part of the petitioners that the respondent should produce a caste validity certificate from the State of Maharashtra as a precondition for promotion even to an open category seat, is untenable.
23] For all the aforesaid reasons, we see no good ground to interfere with the impugned judgments and orders made by the MAT. This petition is therefore, dismissed. Rule is discharged. There shall however be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)