Bombay High Court Judgement On Fake Caste Certificate and Termination of Service

Bombay High Court
Smt. Damyanti W/O. Baliram Uikey ... vs Smt. Chitra W/O Fulchand Sahare, ... on 13 April, 2018
Bench: B.P. Dharmadhikari
Judgment wp1562.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1562/2004 AND CONTEMPT PETITION NO.

238/2016; WRIT PETITION NO. 258/2014 AND CONTEMPT PETITION
NO.34/2014 AND WRIT PETITIONNO. 6740/2016.
...........
(1) WRIT PETITION NO. 1562/2004

AND CONTEMPT PETITION NO. 238/2016.
1. All Indian Adivasi Employees Federation

a Trust and Society having registered
No. MAH/159/67, having its Central
Office at 233, Gondwana Vikas Mandal
Tukadoji Nagar, Manewada Road,
Nagpur through its Secretary, Madhukar
Wuike, Central Committee, Nagpur
tahsil and District Nagpur.
2. Motiram Chhatiram Kangale,

aged about 55 years, Occupation - service,
as Coin Note Examiner-cum-clerk
Grade-I, resident of Plot no.48,
Ujjwal Society, Jaitala Road,
Nagpur. ... PETITIONERS.
VERSUS
1. The Reserve Bank of India,

through its Regional Director, Reserve
Bank of India Building, Dr. Raghavendra
Rao Road, Opposite Vidhan Bhavan,
Civil Lines, Nagpur.
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2. The Chief General Manager,

I/C Department of Administration
and Personnel Management,
Reserve Bank of India, Central Office
Dr. Annie Besant Road, Garment House
Worli, Mumbai.
3. The Union of India,

through its Secretary, Ministry of
Finance, Department of Economic Affairs
Banking Division, "Jeevandeep Building"
Parliament Street, New Delhi.
4. The State of Maharashtra,

through nits Secretary, Ministry of
Tribal Development, Mantralaya
Mumbai. ... RESPONDENTS
.
AND
CONTEMPT PETITION NO. 236/2016.
All Indian Adivasi Employees Federation

Nagpur through its Secretary ... PETITIONER.
VERSUS
1. Ku.J. Jivani
Regional Director,
Reserve Bank of India
Building, Dr. Raghavendra
2. Dr.D.B.V. Raju,
Assistant General Manager,
Judgment wp1562.04
Dr. Raghavendra Rao Road,

Opposite Vidhan Bhavan,
Civil Lines, Nagpur. ... RESPONDENTS
.
WITH
(2) WRIT PETITION NO. 258/2014

AND CONTEMPT PETITION NO. 34/2014.

Nagpur.
2. Nilay s/o Shyam Band,

resident of 58, Indraprastha Layout,
Swawalambinagar, Nagpur.
3. Vinod s/o Prabhakar Deshmukh,

resident of Badkas Square, Mahal,
Nagpur.
4. Shriniwasan Kumar,
resident of Sainagar, Near Manewada,
square, Nagpur.
5. Kishor Govindrao Sonwane,

resident of Plot No.45, Pundlik Layout,
Bharatnagar, Amravati road, Nagpur. ... PETITIONERS.
VERSUS
1. The Reserve Bank of India,

through its Regional Director, Reserve

Judgment wp1562.04
4
Bank of India Building, Dr. Raghavendra

2. The Chief General Manager,

I/C Department of Administration
and Personnel Management,
Reserve Bank of India, Central Office
Dr. Annie Besant Road, Garment House
Worli, Mumbai.
3. The Union of India,

through its Secretary, Ministry of
Finance, Department of Economic Affairs
Banking Division, "Jeevandeep Building"
Parliament Street, New Delhi.
4. The State of Maharashtra,

through nits Secretary, Ministry of
Tribal Development, Mantralaya
Mumbai-400032.
5. Gajanan Marotrao Nimje,

aged about 57 years, Occupation - Manager (Issue),
6. Chandrakant Balaji Paunikar,

aged about 58 years, Occupation - P.S.(Gr.A)
H.R.M.D.
7. Girish Baburao Nandanwar,

aged about 47 years, Occupation -
A.M.(Lounge), H.R.M.D.
8. Shantaram Baburao Ninawe,

aged about 56 years, Occupation - Asstt.
Manager (Banking)
9. Ramesh Narayan Sonkusare,

aged about 55 years, Occupation - Asstt
Manager (Issue),
10. Ramesh Hiramanji Hedaoo,

Manager (NCC).

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11. Kashinath Shravan Khot

Asst. Manager (Issue),
12. Smt. Hemlata Dinkar Kumbhare

Manager (P.D.O.)
13. Anilkumar Ganpatrao Deolikar

Special Assistant (Cash Department),
14. Smt. Nirmala Wamanrao Fegade

Senior Assistant (R.P.C.D.)
15. Goving Beniram Kohad,

Sr. Assistant (H.R.M.D.)
16. Harishchandra Ganapati Bharadbhunje

aged about 52 years, Occupation - Sr.
Assistant (C.A.S.)
17. Prakash Anantrao Rambhad,

Assistant (P & S),
18. Dipak Sitaramji Patil

Assistant (P.D.O.).
19. Krishna Narayan Mohadikar

Sr, Assistant (C.A.S.)
20. Janardhan Laxmanrao Mahajan

aged about 56 years, Occupation - Sr..
Assistant (H.R.M.D.)
21. Kirankumar Abaji Sorte

Assistant (C.A.S.)

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22. Ashok Damuji Tarnekar,
Assistant (U.B.D.),
23. Ratnakar Wasudeorao Admane

Assistant (U.B.D.).
24. Dhyaneshwar Wasudeorao Dekate

Sr, Assistant (P.D.O.)
25. Vinod Biharilal Chourasia

Assistant (C.E.S..)
26. Manohar Balaji Barapatre

Assistant (Issue Department.)
27. Janardhan Narayan Sonkusale,

Assistant (Issue Department),
28. Ganpati Purushottamji Kumbhare

Assistant (Issue department.).
29. Hemantkumar Prabhakar Kumbhare

Sr, Assistant (C.e.S.)
30. Tulsidas Baliram Nandanwar

Assistant (C.A.S.)
31. Balwant Hemchandra Dharmik

Assistant (HRMD)
32. Ravindra Mahadev Parhate

Assistant (U.B.D.),

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33. Bhojraj Balaji Pounikar

Assistant (Banking).
34. Janrao Uasrao Nimje

aged about 56years, Occupation -
Sr, Assistant (HMRD)
35. Keshao Narayan Karamkar

Assistant (HRMD.)
36. Vijay Shamrao Kumbhare

aged about major, Occupation - Sr.
Assistant (PDO)
37. Mukesh Ramchandra Mohadikar

Assistant (CES),
38. Udaysingh Baldeosingh Dinore

Assistant (Issue Department).
39. Rajkumarsingh Gurudayalsingh Chauhan

Sr, Assistant (C.E.S.)
40. Dewaji Jagannath Parate

Assistant (Issue Department.)
41. Anilkumar Suratlal Chaurasia

Assistant (PDO.)
42. Liladhar Laxmanrao Kumbhare

Assistant (Bankind Department.),
43. Dilip Shrawanji Khadatkar

Assistant (C.A.S.).

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44. Smt. Maya Limdeo Parate

Sr, Assistant (Issue Department)
45. Anil Sudhakar Rambhal

Assistant (C.E.S..)
46. Smt. Bharti Raghunandan Parsatwar

Assistant (PDO.)
47. Dilip Panjabrao Hedau

Assistant (Issue department)
48. Purushottam Ramchandraji Welekar

Assistant (C.A.S.)
49. Smt. Manju Umesh Naidu

Assistant (HRMD.)
50. Ramesh Kisanrao Dekate

Assistant (Issue Department )
51. Suresh Yadaorao Ghaywat

Assistant (Cash department)
52. Balkrishna Mahadeorao Ninawe

Assistant (Cash Dept.)
53. Prabhakar Daulatrao Barwad

Assistant (Cash Deptt)
54. Ramkrishna Motiram Parate

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55. Yashwant Tikaram Bhagat

56. Bhaurao Kisanji Ambolikar

57. Jagannath Chudaman Ninawe

58. Wasudeo Mahadeorao Limje

59. Janglu Mahadeorao Randive

60. Vijay Bapurao Kohad

61. Govind Somdeorao Gadikar

62. Pradip Shankarrao Ninawe

63. Choith Virumal Khatwani

64. Kamlakar Vithalrao Barapatre

65. Smt. Aarchana Shirish Gajralwar


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66. Diwakar Madhaorao Likhar

67. Shyamrao Harishchandra Dhabekar

68. Rajendra Yashwantrao Hedau

69. Rajaram Barshya Ramtekkar

70. Smt. Pushpawati Anil Marsattiwar

71. Smt. Kalpana Rajkumar Dekate

aged about 48years, Occupation - Sr..
72. Rajkumar Shravan Dekate

Assistant (C.A.,S)
73. Bhaskar Somaji Chichghare

Assistant (Issue Deptt)
74. Madhukar Bhauraoji Sorte

Assistant (C.A.S.)
75. Smt. Vijaya Satish Randive

Assistant (HRMD)
76. Smt. Nandani Ramesh Hedaoo


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77. Deepak Shantaram Brapatre

Assistant (HRMD)
78. Ramchandra Chandan Sonkusare
Assistant (UBD)
79. Prabhakarkumar Namdeorao Sadavarte

Assistant (C.,A.S.)
80. Yogeshwar Vithobaji Binekar

aged about 57 years, Occupation - Spl..
Assistant (Banking)
81. Chandrakant Dashrath Barde

aged about 57 years, Occupation - HWP.
Assistant (Rajabhasha)
82. Vasant Mahadeo Umredkar

aged about 58 years, Occupation - WP.
Assistant (HRMD)
83. Maroti Jairamdas Burde

84. Ramchandra Damaji Devikar

Assistant (HRMD)
85. Fulchand Umraoji Parate

Assistant (UBD)
86. Khemraj Bhaskar Nandankar

Assistant (UBD)
87. Nilkanth Narayan Kumbhare


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Assistant (Rajbhasha)
88. Ashok Fakirchand Asai

Assistant (Banking Deptt)
89. Ashok Dharamraj Bhatkhore
Assistant (Banking Deptt)
90. Smt. Sheetal Chandrakant Kale

Assistant (HRMD)
91. Mohan Chintamanrao Hedaoo

Assistant (CAS)
92. Rajendra Bhaurao Borkar

aged about 52 years, Occupation - WP
Assistant (HRMD)
93. Nilkanth Ramchandra Dekate

aged about 48 years, Occupation - Tel.
Operator (HRMD)
94. Hemraj Jagannath Chandekar

aged about major, Occupation - Secr
Assistant (HRMD)
95. Ganesh Haribhau Nimje

Machine Op.(CES)
96. Ajaykumar Vishwanath Asai

aged about 47 years, Occupation
Machine Op. (NCC)
97. Gopichand Nathuji Dhote

Office Attdt (Issue)
98. Digambar Ganuji Ninawe


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13
Off. Attdt.(Issue)
99. Bharat Bhayyaji Pekade

Off. Attdt.(HRMD)
100. Suresh Narayan Bhunje

Off. Attdt.(Issue)
101. Chandrashekhar Wasudeo Hedao

Off. Attdt (Cash Deptt)
102. Bharat Mahadeorao Shelke

Offr. Attdt. (Cash Deptt)
103. Dilip Tukaram Binekar

Off. Attdt.(Issue)
104. Prakash Ramaji Mohadikar

Offr. Attdt.(HRMD)
105. Ashok Ganapatraoji Kumbhare

Off. Attdt. (HRMD)
106. Sudhakar Ganapatrao Burde

Off. Attdt (Estate)
107. Haribhau Vithobji Mandulwar

Off. Attdt (Banking)
108. Prabhu Mansaram Barapatre

Off. Attdt (C.E.S.)
109. Hiraman Jairam Khapekar


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Off. Attdt (CES)
110. Keshav Kawaduji Nipane

Off. Attdt (CAS)
111. Dashrath Sukal Raut

112. Krishna Ramaji Dhanorkar

113. Devidas Mahadeorao Waghade

114. Vijaykumar Deorao Pakhale

Off. Attdt (Cash Deptt.)
115. Namdeo Nagorao Dhakate

116. Laxman Narayan Bawane

117. Tukaram Raghoba Prachand

118. Mahadeo Vithoba Khapekar

119. Namdeo Lahanuji Sonkusre
120. Khusahl Mahadeo Nikhare
Off. Attdt (HRMD.)
121. Narayan Shamrao Paunikar

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Off. Attdt (HRMD.)
122. Kishor Babanrao Tadurwar
Off. Attdt (CAS.)
123. Vinayak Harisao Barapatre
Off. Attdt (PDO.)
124. Nirmala Purankar Purankar
Off. Attdt (CAS.)
125. Prabhakar Nathuji Dhapodkar
Off. Attdt (CAS.)
126. Purushottam Namdeorao Hingnekar
Off. Attdt (P&S.)
127. Pramod Madhukarrao Samudrawar
Sr. Tech. Attndn (CAS.)
128. Harishchandra Shrawan Hedaoo
Asstt. Cook (OLDR.)
129. Santosh Motiram Dhapodkar
Ctrg. Attdt (OLDR.)
130. Gangadhar Mahadeo Mahajan
Ctrg. Attdt (OLDR.)
131. Ashok Motiram Pulewale
Maint. Attdt (P&S.)
132. Ishwar Mangaldas Gokhale
Maint. Attdt (P&S.)
133. Deepak Mahadeorao Bangde
Maint Attdt (P&S.)
134. Vasant Baliram Warhade
Maint Attdt (P&S.)
135. Keshaorao Jagan Dhapodkar
Maint. Attdt (P&S.)

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136. Vijay Sewadas Hedau

Maint. Attdt (P&S.)
137. Tanaji Chintaman Burde
Maint. Attdt (P&S.)
138. Bhagwandas Haridas Hedaoo
Maint. Attdt (P&S.)
139. Arun Ganpatrao Nandanwar
Off. . Attdt (Cash Deptt.)
140. Suresh Mannalalji Bariya
Driver (P&S.)
Respondent nos. 5 to 140 c/o. Reserve

Bank of India, HRMD Section
Raghawendra Rao, Marg,
Nagpur 440 001. ... RESPONDENTS
.
AND
CONTEMPT PETITION NO. 34/2014.

Nagpur.
2. Nilay s/o Shyam Band,

resident of 58, Indraprastha Layout,
Swawalambinagar, Nagpur.
3. Kishor Govindrao Sonwane,

resident of Plot No.45, Pundlik Layout,
Bharatnagar, Amravati road, Nagpur. ... PETITIONERS.

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17
VERSUS
Ashok Kumar Shadangi,

Incharge Regional Director and
Chief General Manager of the
Reserve Bank of India Building,
Dr. Raghavendra Rao Road,
Opposite Vidhan Bhavan,
Civil Lines, Nagpur. ... RESPONDENT
.
WITH
(3)
WRIT PETITION NO. 6740/2016.
1. Shri Ananta Gajanan Gaiki,

Aged about 48, Occupation- Service,
presently holding post of AG-I (G)
2. Shri Dinesh Moreshwar Dixit,

Aged about 46, Major, Occupation -
Service, presently holding the post
of AG-I(D).
3. Shri Purushottam Sitaram Vaidya,

of AG-I(D).
4. Shri Mulichand Tekiram Dani,

of AG-I(D).
5. Shri Shrish Manoharrao Bhute,

of AG-I(Min).
All employees of Food Corporation

of India, Office at Chuna Bhatti,
Ajni, Nagpur 440 015. ... PETITIONERS.

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18
VERSUS
1. Union of India,
through Ministry of Consumer Affairs
Food and Public Distribution,
Krishi Bhawan, New Delhi 110 001.
2. The Food Corporation of India,
A Government of India Undertaking,
having its head office at 16-20,
Barakhamba Lane, New Delhi
110001, through its Chairman
and Managing Director.

Regional Office (Maharashtra)
"FCI Building" Rajendra Nagar,
Dattapada Road, Borivali (East)
Mumbai 400 066, through its
General Manager.

Zonal Office (West) "FCI Building"
Rajendra Nagar, Dattapada Road, Borivali (East)
Mumbai 400 066, through its
Executive Director.

District Office Chunabhattai Road,
Ajani, Nagpur 440 015
through its Area Manager. (Administration)
6. Shri S.G. Barapatre,

Aged Major, occupation - service.
7. Shri A.B. Sonkusare,

Aged Major, Occupation - service.
8. Shri M.A. Parate,

Aged major, occupation - Service.

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19
All employees of Food Corporation

of India, office at Chuna bhatti,
Ajani, Nagpur 440 015. ... RESPONDENTS
.
---------------------------------
Shri S.P. Bhandarkar, Advocate for Petitioners.
Shri M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde,
Advocate for Respondent - Reserve Bank of India.
Shri C.S. Samudra, Advocate for Respondent - Food Corporation of India.
Shri S.A. Chaudhari, Ms. M. Chandurakr, Advocates for Respondent - Union of
India.
Ms. T. Khan, A.G.P. for Respondent - State.
Shri S.B. Wahane, Shri A.A. Naik, Shri M.Shareef and Shri M.D. Lakhey,
Advocates, for Respondent - individual employees.
----------------------------------
CORAM : B.P. DHARMADHIKARI &

SMT. SWAPNA JOSHI
, JJ.
DATE OF RESERVING JUDGMENT : 20.02.2018
DATE OF PRONOUNCEMENT : 13.04.2018
JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Facts in detail are not necessary. Question involved in all these matters is - Whether the employees who have given up
their caste claim, and hence the same has never been subject to caste verification by the Scrutiny Committee
functioning under Section 6 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Judgment wp1562.04 Backward Classes and Special Backward Category (Regulation
of Issuance and Verification of) Caste Certificates Act, 2000 (Maharashtra Act No. 23 of 2001), can continue in
employment because of Division Bench judgment of this Court dated 01.11.2012 in Writ Petition Nos. 5198/2009,
2126/2010 and 1512/2004. It is not in dispute that Writ Petition No. 5162/2004, was also to be decided along with
these three Writ petitions, but, then has not been decided and is being considered by us now.
2. In Writ Petition No. 5198/2009, there were total 25 petitioners and first petitioner is one A.P. Ramtekkar. The
judgment has been reported in his name as (2013) 2 Mah.L.J. 419-- A.P. Ramtekkar v. Union Of India and while
arguing, the respective Counsel have referred to this judgment, as judgment in case of Shri A.P. Ramtekkar. Employer
of these 25 petitioners was/is Food Corporation of India.
3. Writ Petition No. 2126/2010, was filed by 33 petitioners and Food Corporation of India was their employer. Writ
Petition No.1512/2004 is by Reserve Bank of India Employees Association and their employer was Reserve Bank of
India. In Writ Petition No.1512/2004, apart from the employees Association, Reserve Bank of India Halba
Karmachari Sanstha was petitioner no.2 and Reserve Bank Scheduled Tribe Employees Joint Action Committee was
petitioner no.3. There are 5 individual employees as petitioners at Sr. Nos. 5 Judgment wp1562.04 to 8.
4. Division Bench in A.P. Ramtekkar held that all Halba Koshti whose appointment had become final on 28.11.2000,
are entitled to protection of their services as held in 2001 (1) Mh.L.J. 1 (State of Maharashtra .vrs. Milind Katware
and others). It found that Office Memorandum dated 10.08.2008, issued by the Union of India was also on same lines.
In paragraph no.14, this Division Bench found insistence of employer and its compelling petitioners before it to get
the caste certificate verified by the scrutiny committee under the 2001 Act, unjustified as they had already given up
their caste claim, and as such verification would be an empty formality. In Writ Petition No. 1512/2004, three
associations were also the petitioners but, petition at their instance was dismissed observing that employee in position
to agitate his individual claim must do so. Therefore, only grievance of petitioner nos. 4 to 8 was entertained in that
matter. Again identical relief was given to petitioners no.4 to 8. Benefits secured by them after 28.11.2000 on the
basis of their status as Scheduled Tribe were allowed to be withdrawn and that liberty was given to employer. It was
thus, open for the employer to restore their position as on 28.11.2000.
5. It appears that Special Leave Petition filed by the Food Corporation of India vide Special Leave Petition Nos.
11831-11832 of 2013 was dismissed by the Hon'ble Supreme Court on 12.04.2013. Review Petitions (Civil) Nos.
497-
Judgment wp1562.04 498 of 2014 were also dismissed on 26.02.2014.
6. It is in this background that we have heard Shri S.P. Bhandarkar, learned Counsel for petitioners, Shri M.G.
Bhangde, learned Senior Counsel for employer - Reserve Bank of India, Shri C.S. Samudra, learned counsel for Food
Corporation of India, Shri S.A. Chaudhari, learned Counsel for Union of India. Shri A.A. Naik, Shri M.Shareef and
Shri M.D. Lakhey, learned Counsel have argued the cases of individual employees arrayed as respondents.
7. Shri Bhandarkar, learned counsel submits that petitioners represent the cause of genuine tribals and open category
employees, who have suffered because of wrongful employment procured by playing fraud by individuals. He states
that above mentioned Division Bench judgment in case of A.P. Ramtekkar, has been upset by the Full Bench in case
of Arun Vishwanath Sonone .vrs. State of Maharashtra and ors (2015 (1) Mh.L.J. 457), and hence, employees whose
caste-claims have not been validated, are not entitled to any protection in employment. By giving up their respective
castes, employees have accepted that they entered service illegally and hence, have no right to post. He submits that
these employees therefore, cannot claim restoration to position as on 28.11.2000 or on any other date, and they cannot
continue to occupy any post in public employment to the prejudice of other open caste or reserved caste employee. He
claims that those posts are meant to be held by persons whoJudgment wp1562.04 have been legally recruit as per law.
8. Inviting attention to later judgment of the Hon'ble Supreme Court in case of Chairman and Managing Director, FCI
and others .vrs. Jagdish Balaram Bahira and others (2017 (4) Mh.L.J. 898 ), he submits that use of concept of
prospective overruling by the Full Bench to extend protection to employees whose caste claims have been
invalidated, is found unsustainable and therefore, Full Bench judgment itself has been set aside. Thus, after this
judgment in case of Chairman and Managing Director .vrs. Jagdish (supra), no employee whose caste claim is
invalidated, can claim any right to continue in employment. He adds that therefore, judgment of Hon'ble Supreme
Court does not mean restoration of view taken by the Division Bench in case of A.P. Ramtekkar. Full Bench allowed
protection only in limited cases, where caste claim was invalidated, but, Scrutiny Committee did not find any fraud
played by such incumbent. The Hon'ble Supreme Court has declared that invalidation of caste claim itself
tantamounts to wrongful entry in public employment, and therefore, ouster therefrom must follow. He states that in
view of this position, the employees who have been given benefit of protection by the Food Corporation of India or
the Reserve Bank of India by adhering to the Division Bench judgment in case of A.P. Ramtekkar, must also walk
out. The employees who gave up caste claim in order to avoid verification exercise, do not stand on better footing
than those whose caste claims are invalidated. He submits that Judgment wp1562.04 Act No. 23 of 2001 recognizes
only caste validity certificate issued after due verification by the Scrutiny Committee and in absence of such
certificate, employer respondents before this Court cannot permit any individual who has given up his caste to remain
in employment.
9. As respondents have raised challenge to locus of petitioners, he has placed reliance upon judgment in case of Akhil
Bhartiya Soshit Karmachari Sangh (Railway) .vrs. Union of India and others (AIR 1981 SC 298 (1), to establish
locus. Inviting attention to pleadings in Writ Petition No. 1562/2004, he submits that employees who have
approached this Court are in open category. He has also invited our attention to the fact that respondents mentioned in
paragraph no.11, have been promoted as Special Assistants and Assistant Manager (A), which militates with seniority
and rights of petitioners. He strongly places reliance upon judgment of Hon'ble Supreme Court in case of Chairman
and Managing Director .vrs. Jagdish (supra), to show how objection on the basis of locus is misconceived.
Respondent nos. 5 to 140 have been absorbed in open category and have been promoted in open category, without
fixing their seniority, as such from the date of joining. Posts which have become vacant because of this exercise have
not been filled in thereafter. Our attention is invited to pleadings in paragraph nos. 6,8 and 9 of Writ Petition in an
effort to demonstrate that by shifting these protected employee to open category, undue favour has been shown to
them. It is claimed that the Judgment wp1562.04 promotional post are acquired by these respondents on the strength
of their promotion after 28.11.2000, as they belong to Scheduled Tribe category. Respondent nos. 5 to 140 ought to
have been placed below the last candidate in open category as on 28.11.2000, but, this has not been done. Petitioner
no.2 who is senior to respondent nos. 5 to 140, is denied promotion and consequential benefits. Reserve Bank of India
has shown respondent nos. 5 to 140 and even petitioner no.2 with their designation as Special Assistant, and they
have also been paid arrears of Rs. 3 lakhs each, from the year 2005.
10. About 139 employees have given undertaking accordingly subject to outcome of the Writ Petition.
11. Promotion order issued by the Reserve Bank of India on 24.12.2013, is assailed by pointing out that these
employees have been given retrospective promotion, and this promotion and date is because they passed departmental
examination as Scheduled Tribe candidate. He contends that for passing departmental examination, concession is
given to Scheduled Tribe candidates and as that concession ceased due to giving up of caste and not available, the
order is erroneous. He further states that these promotions are shown notionally because of Writ Petition No.
16837/2011, then pending in the Rajasthan High Court.
Judgment wp1562.04
12. He has taken us through the additional submissions filed by the petitioners and observations of Hon'ble Supreme
Court in paragraph nos. 9, 10 and 12 of its judgment in case of B.H. Khawas .vrs. Union of India and others- (2016) 8
SCC 715). Retrospective order of promotion given to respondents on 30.05.2016 is contrary to the interim orders in
Writ Petition No. 1562/2004. Even on 18.04.2017, retrospective orders of promotion have been issued. Inviting
attention to clause 24 in the appointment order, he states that appointment of respondents was provisional and subject
to verification of caste- claim. Their services ought to have been terminated forthwith and necessary action
under Indian Penal Code should have been taken.
13. On 11.08.2015, in Writ Petition No. 1562/2004 this Court passed an order and that order is in supercession and
modification of all earlier interim orders. Employer was asked to grant promotion on the post reserved for Scheduled
Tribe category to only those who were holding validities. The employees who have given up their caste claim, were
directed to be treated as employees belonging to open category to be promoted accordingly. Direction was issued to
rework the roaster. He contends that in this situation, judgment in case of A.P. Ramtekkar dated 01.11.2012, cannot be
construed as judgment in rem. The petition filed by the Association was dismissed and High Court directed
withdrawal of benefits released after 28.11.2000. High Court did not shift the employees who have given up their
caste to open category.
Judgment wp1562.04
14. To explain impact of latest judgment of Hon'ble Supreme Court in case of Chairman and Managing Director .vrs.
Jagdish (supra), he has read out extensively said judgment with submission that the Hon'ble Supreme Court has found
recourse to doctrine of prospective overruling and need to mens rea, by Full Bench in case of Arun Sonone .vrs. State
of Maharashtra (supra), incorrect. He contends that therefore, judgment in case of A.P. Ramtekkar cannot be seen as
judgment in rem at all and there cannot be any challenge to locus of petitioners.
15. To demonstrate that such petition is maintainable and petitioners possess locus, he has relied upon paragraph nos.
22 and 23 of judgment in case of Confederation of Ex-servicemen Associations and others .vrs. Union of India
((2006) 8 SCC 399). Judgment reported in case of Maval Taluka General Kamgar Sanghtana and another .vrs. Kirkee
Cantonment Board and others (2003 (4) L.L.N. 578), is also relied upon to show locus. Judgment of Hon'ble Supreme
Court in case of Booz Allen and Hamilton Inc. .vrs. SBI Home Finance Limited and others ((2011) 5 SCC 532), is
also relied upon to explain the concept of judgment in rem and judgment in persona. He contends that Division Bench
in A.P. Ramtekkar ignores or overlooks fraud practiced by respondents while securing entry in public employment.
Judgment wp1562.04
16. While arguing Writ Petition No. 6740/2016, he submits that petitioners are in open category. Comparative chart at
Annexure-A, showing the dates of appointment, dates of promotion and designations, is pressed into service by him
in an attempt to show that their reserved category candidates have been given benefit because of their status as
reserved category persons and injustice has been done to open candidates, though there is specific direction to restore
status of reserved category candidate as on 28.11.2000. Respondent No.7 has been given retrospective promotion
because of orders of High Court dated 07.09.2015 in Writ Petition No. 640/2015. He points out that this direction of
High Court is after adjudication in case of A.P. Ramtekkar. He has placed strong reliance upon paragraph nos. 7 to 9
of this order dated 07.09.2015. One of us (B.P. Dharmadhikari, J), is party to this order.
17. Office order dated 07.10.2016, is relied upon by him to urge that respondents treated as general category
candidates have been thereafter unduly favoured while giving their placement. Our attention is drawn to case of
respondent no.6 Shri S.G. Barapatre. It is pointed out that promotion to the post of AG-I is shown w.e.f. 31.01.2011,
as per panel dated 23.12.2011. He states that said exercise has been carried out after this court extended time on
22.01.2016, while passing orders on Civil Application No. 2477/2015 in Writ Petition No. 640/2015. In paragraph
no.9 of order dated 07.09.2015 in WritJudgment wp1562.04 Petition No. 640/2015, absence of any vacancy in
reserved category and promotion in open category has been taken note of. Reply filed by respondent nos. 2 to 5 in
Writ Petition No. 6740/2016, reveals contention that all petitioners in Writ Petition Nos. 5198/2009 and 2126/2010,
were to be restored to the position as on 28.11.2000. It is pointed out that subsequent promotions which such
adjusted/ protected employees got, were only because of accelerated promotion. (We do not wish to look into this
argument and contention because it is eclipsed by orders in Writ Petition No. 640/2015.) Shri Bhandarkar, learned
counsel has submitted that employees thus protected only had advantage of protection in employment and, therefore,
their names should have been maintained in separate book or cadre without requiring any "legally recruited
employee" like petitioners to compete with them. He further adds that after judgment of Hon'ble Supreme Court in
case of Chairman and Managing Director .vrs. Jagdish (supra), their retention in employment itself is contrary to law.
18. Shri Bhangde, learned Counsel opposing Writ Petition Nos. 1562/2004 and 268/2014 on behalf of the employer
Reserve Bank of India has submitted that petitioner in Writ Petition No. 1562/2004 is an Association of Adivasi
Employees. He has invited attention to assertions in paragraph no.12 and prayer clause (iii). Inviting attention to reply
of Reserve Bank of India dated 27.01.2011, he submits that the caste claims were to be sent to the Judgment
wp1562.04 Committee for verification, but, then because of judgment of High Court in case of A,P. Ramtekkar (Writ
Petition No. 1512/2004), that course was no longer open. Present petitioners cannot seek review of that judgment in
case of A.P. Ramtekkar and must go to the Hon'ble Supreme Court challenging it. Writ Petition No. 1562/2004
(present petition), was listed with all matters which are decided on 01.11.2012 along with case of A.P. Ramtekkar,
hence, separate hearing of Writ Petition No. 1562/2004 is nothing but, rehearing of Writ Petition No. 1512/2004.
19. Association like petitioner no.1 can file Writ petition for injury suffered by the affected members only.
Respondents who are absorbed in open category do not inflict such injury on members of petitioner no.1 and exercise
leaves more seats available for such members.
20. In Writ Petition No. 258/2014, same Association with 4 more persons are party petitioners.
21. He submits that judgment in case of Akhil Bhartiya Soshit Karmachari Sangh (Railway) .vrs. Union of India and
others (supra), contains only a finding by way of obiter and it is not binding. He also attempts to distinguish other two
judgments relied upon by Shri Bhandarkar. He adds that there cannot be any public interest litigation in such or
service matters.
Judgment wp1562.04
22. It is urged that all petitioners in Writ Petition No. 258/2014, appear before absorbed employees/protected
employees in seniority. Hence, no legal right is violated. All seniority lists were circulated and are also available on
website, petitioners did not raise any objection to it.
23. Inviting attention to reply filed by Reserve Bank of India, particularly paragraph [vi] and [vii], he points out that 4
petitioners did not clear departmental examination for promotion, and hence, there is no question of any legal injury
to them. He has taken us through judgment in case of A.P. Ramtekkar to demonstrate how the Division Bench has
considered rival contentions. He points out that directions issued by the Division Bench were not questioned by the
employer Reserve Bank of India. He also submits that there is no direction and mandate issued by this Court to
recover benefits released in favour of protected employees after 28.11.2000.
24. Vide order dated 11.08.2015 in Writ Petition No.1562/2004, High Court has asked reworking of roaster. He also
points out that order of Reserve Bank of India dated 19.07.2013, is impugned in Writ Petition No. 258/2014. By that
order, 139 employees who gave undertaking, have been extended suitable treatment subject to orders of High Court in
Writ Petition No.1562/2004.
Judgment wp1562.04
25. By placing reliance upon judgment of Hon'ble Supreme Court in case of State of Uttar Pradesh and others .vrs.
Arvind Kumar Srivastava And others ((2015) 1 SCC 347), he justifies action of Reserve Bank of India in extending
benefit directions in case of A.P. Ramtekkar to others who did not approach Court of law, but, gave up caste claim.
26. Bhushan Power and Steel Limited and others .vrs. Rajesh Verma and others ((2014) 5 SCC 551) particularly
paragraph no.21 is relied relied upon by him to buttress the submission that merely because another judgment taking
some other view has been delivered, the earlier judgment does not lose its binding effect on parties. Kalinga Mining
Corporation .vrs. Union of India and others ((2013) 5 SCC 252), particularly paragraph nos. 42 and 44 are heavily
relied upon to argue that a wrong decision also operates as res judicata and subsequent interpretation or explanation
by a Court of law would only have prospective operation. A subsequent judgment cannot confer any benefit upon
petitioners in present matters. He draws support from paragraph no.26 of judgment in case of Pradeep Kumar
Maskara and others .vrs. State of West Bengal and others ((2015) 2 SCC 653). He contends that Reserve Bank of
India had issued 25 show cause notices to its employees who were petitioners in Writ Petition No. 5198/2009. Those
show cause notices were found invalid and protection has been extended to all those employees. The later
exposition Judgment wp1562.04 of law by the Hon'ble Supreme Court in case of Jagdish (supra), overruling its earlier
judgment in case of Kavita Solunke also does not in this situation open the cases which had attained finality and no
recovery or punitive action has been permitted.
27. Shri Bhangde, learned Senior Counsel points out that in present petition, petitioners do not seek termination of
employment of such employees who have been extended benefit of A.P. Ramtekkar. Their only prayer is to arrange
for verification of their caste claim and to draw a seniority list in a particular manner.
28. Coming to the question of locus of petitioner nos. 2 to 4 in Writ Petition No. 258/2014, he invites attention to their
pleadings in paragraph nos. 6 and 7, as also reply given by Reserve Bank of India to the same. He contends that
grievance made by them is incorrect. According to him, if protection cannot be extended, then caste certificates of
such employees need to be forwarded for verification. Other details in paragraph nos. 23 and 25 of the reply on behalf
of respondent nos. 1 and 2 are also pressed into service in an attempt to demonstrate that no injury has been caused to
these individuals.
29. Shri Naik, learned counsel for individual employees in Writ Petition No.258/2004, has strongly opposed the
arguments of Shri Bhandarakar, learned Judgment wp1562.04 counsel. He submits that these individuals are not
respondents in Writ Petition No.1562/2004. Inviting attention to objection of locus, he submits that in paragraph no.8,
petitioners have not given details and no legal injiury suffered by petitioner no.2 Nilay Band has been pleaded. His
entitlement to promotion is also brought on record. Judgment delivered in case of A.P. Ramtekkar, has been
suppressed in the matter.
30. Reply on behalf of respondent nos. 5, 18, 20 to 28, 30, 78 and 80 to 140, particularly paragraph no.10 is pressed
into service to show that respondents have been given post as sub-assistant and it is not a promotional post. It is time
bound promotion given to respondent nos. 13 to 80, who complete 20 years of service. Verification of caste claim or
any particular caste as such, is not therefore, prerequisite for it. Similarly, for Respondent nos. 81 to 140, it is claimed
that they have been placed on post on which they were working on 28.11.2000, and have been promoted thereafter.
Respondent nos. 5 to 12 were promoted long back and there is no express direction in case of A.P. Ramtekkar to
withdraw the benefit. Averments in paragraph no.13 are pressed into service to urge that employer Reserve Bank of
India had discretion and therefore, did not found it appropriate to withdraw the benefits given to respondent nos. 5 to
12. He further adds that 11 respondents i.e. 17, 21, 27, 35, 47, 51, 52, 56, 58, 72 and 94 have been promoted to
officiate as Assistant Manager (Grade-A) on merit after passing departmental promotion Judgment
wp1562.04 examinations in the year 2007. He submits that benefit of judgment in case of A.P. Ramtekkar, needed to
be extended to all by a public employer like Reserve Bank of India because of mandate of Article 14 of the
Constitution of India.
31. Shri Wahane, learned counsel for respondent nos. 19, 29 and 79 in Writ Petition No. 258/2014 has submitted that
respondent nos. 19 and 29 have already retired, while respondent no.79 is due to retire shortly. He adopts arguments
advanced by others to oppose the petitions.
32. Shri Samudra, learned counsel appearing on behalf of Food Corporation of India in Writ Petition No. 6740/2016,
states that judgment in case of A.P. Ramtekkar, was assailed unsuccessfully before the Hon'ble Supreme Court. S.L.P.
as also review application came to be dismissed, and hence Food Corporation of India was constrained to obey High
Court and to give protection. Food Corporation of India also has restored position as on 28.11.2000 and recovered
benefits released to protected employees after said date. He points out that as per order dated 18.11.2000, Shri
Barapatre and Shri Sonkusare were promoted prior to 28.11.2000. He also points out that there was separate seniority
list in view of the directions in case of A.P. Ramtekkar and invites attention to communications dated 21.01.2015 and
24.02.2015, issued by Food Corporation of India in this respect. One Shri Manohar Atmaram Parate (respondent no.8
in petition), questioned the Judgment wp1562.04 separate seniority list in Writ Petition No. 640/2015 and on
07.09.2015, High Court did not approve such separate seniority list. He invites attention to reply filed by respondent
nos. 2 to 5 in this respect. Because of this, protected employees were shifted to general category and their promotion
were fixed notionally w.e.f. from the date of their promotion of their respective juniors in new seniority list. New
seniority list accordingly has been displayed as on 31.12.2015 and the same has not been questioned. He points out
that as is apparent from records of respondents, protected employees were senior to petitioners even before
28.11.2000.
33. He points out that though order of that promotion dated 07.10.2016 has been assailed, all promotees therein are
not party respondents. In Writ Petition only challenge is to promotion of respondents in open category, there is no
challenge to protection as such. After placing reliance on judgment of Hon'ble Supreme Court in case of Jagdish
(supra), effort now is to throw these employees out.
34. Shri Shareef, learned counsel for respondent no.6 in Writ Petition No. 6740/2016 submits that said respondent
was petitioner no.24 in Writ Petition No. 2126/2010, decided on 01.11.2012 along with A.P. Ramtekkar.
35. With leave of Court, Shri Bhangde, learned Senior Counsel has Judgment wp1562.04 addressed briefly on
judgment of Full Bench of this High Court in case of Arun Vishwanath Sonone .vrs. State of Maharashtra and ors
(supra), to explain three categories in which benefit of a Court verdict cannot be extended to others. He submits that
respondents before this Court were not fence sitters.
36. Shri Lakhe, learned counsel for respondent no.8 in Writ Petition No. 6740/2016, submits that respondent no.8 was
promoted on 21.04.2016, and those orders have not been challenged. He further points out from charts on record the
position prevailing before 28.11.2000. He points out that on 09.11.2009, respondent no.8 has been promoted as
Scheduled Tribe candidate, and while explaining the position, employer Food Corporation of India has on 09.11.2000
clarified that this promotion is on merit and not against reservation. Our attention is also drawn to order dated
21.04.2016, which in paragraph no.5 considers eligibility of respondent no.8 as unreserved open category candidate.
37. In brief reply, Shri Bhandarkar, has invited our attention to judgment dated 01.02.2018 in Writ Petition No.
6247/2015. He claims that government resolution providing protection is already set aside.
38. We therefore find it convenient to refer to the latest judgment of Hon'ble Apex Court in Food Corporation of India
v. Jagdish Balaram Bahira,(supra),: In paragraph 55, therein the Hon'ble Court has observed that the intent of
a Judgment wp1562.04 candidate may be of relevance only if there is a prosecution for a criminal offence. It holds
that " However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false
caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent."
The Hon'ble Apex Court holds that the legislature legitimately assumed that a person seeking a caste certificate must
surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. "If the claim to
belong to the reserved category is found to be untrue, the caste certificate has to be canceled on the ground that it has
been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a
benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled."
39. In paragraph 56 the Hon'ble Court points out that service under the Union and the States, or for that matter under
the instrumentality of the State subserves a public purpose. Available resources and the opportunities provided in the
form of public employment are short of demands and needs. The selection of ineligible persons has a deleterious
effect on good governance are explained by it as -- "Firstly, selection of a person who is not eligible allows someone
who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a
person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits Judgment
wp1562.04 upon an imposter undeservingly. These effects upon good governance find a similar echo when a person
who does not belong to a reserved category passes of as a member of that category and obtains admission to an
educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an
imposter who does not belong to a reserved category is selected. The fraud on the Constitution precisely lies in this.
Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of
imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie.
Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be
utilized to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious
plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act 23 of 2001, the power under Article
142 should not be exercised to defeat legislative prescription." -----........------------. "Several decisions of two-Judge
Benches noticed earlier, failed to take note of Maharashtra Act 23 of 2001. The directions which were issued
under Article 142 were on the erroneous inarticulate premise noted the statute but that the area was unregulated by
statute. Shalini misconstrued it."
We have emphasized the portion in bold letters above to highlight the obligation of the High Court in its extraordinary
jurisdiction.
Judgment wp1562.04
40. Food Corporation of India v. Jagdish Balaram Bahira,(supra), at page 725 also considers Full Bench judgment in
case of Arun Sonone vs State of Maharashtra (supra). The Full Bench judgment holding that (i) mere invalidation of
the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge
from employment or cancellation of appointments that have become final prior to the decision in Milind on 28-11-
2000; (ii) the benefit of protection in service upon invalidation of the caste claim is available not only to persons
belonging to Koshti and Halba Koshti but is also available to persons belonging to the special backward category on
the same terms and (iii) the decision in Milind was in the nature of prospective overruling of the law which was laid
down by the Bombay High Court is declared "clearly unsustainable". It also declares that-- "The jurisdiction
under Article 142 is clearly not available to the High Court in the exercise of its jurisdiction under Article 226. The
High Court erred in arrogating that jurisdiction to itself."
41. Observations of Hon'ble Apex Court in this Judgment in para 65 on circulars and policies extending the protection
to dishonest employees show that such "administrative circulars and government resolutions are subservient to
legislative mandate and cannot be contrary either to constitutional norms or statutory principles. The services of an
individual whose caste claim isJudgment wp1562.04 invalidated cannot be protected by taking recourse to
administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional
scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory
norms. The principle that the Government is bound by its own circulars is well settled but it cannot apply in a
situation such as the present. Protecting the services of a candidate who is found not to belong to the community or
tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the
reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a
situation where the rights of genuine members of reserved groups or communities are liable to be affected
detrimentally, government circulars or resolutions cannot operate to their detriment." In para 66 the Hon'ble Supreme
Court observes that it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect
that individual. Societal good lies in ensuring probity. The Hon'ble Apex Court emphasizes that that is the only
manner in which the sanctity of the system can be preserved. "The legal system cannot be seen as an avenue to
support those who make untrue claims to belong to a caste or tribe or socially and educationally backward class."
These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme
and cannot be usurped by those who do not belong to them. "The credibility not merely of the legal system but also of
the judicial process will be eroded if such claims are protected in Judgment wp1562.04 exercise of the constitutional
power conferred by Article 142 despite the State law."
42. Following observations in this judgment of Hon'ble Apex Court are also important --
"67. This aspect has been considered in a recent judgment rendered by one of us in Nidhi Kaim v. State of
M.P., wherein, speaking for a Bench of three Judges, in a case of systemic fraud in relation to medical
admissions in the State of Madhya Pradesh. It was observed as follows: (SCC p. 64, para 92).
"92. ... we are of the considered view that conferring rights or benefits on the appellants, who had
consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid
down norms, for gaining admission to the MBBS course, would amount to espousing the cause of "the
unfair". It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was
not supportive of the cause of those who had adopted and followed rightful means. Such a course would
cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in
the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the
sacrilegious. It would also compromise the integrity of the academic community. We are of Judgment
wp1562.04 the view that in the name of doing complete justice it is not possible for this Court to support
the vitiated actions of the appellants through which they gained admission to the MBBS course.
99. Besides the consideration recorded by us in the foregoing paragraphs, we may confess, that we felt
persuaded for taking the view that we have, for a very important reason -- national character. There is a
saying--when wealth is lost, nothing is lost; when health is lost, something is lost; but when character is
lost, everything is lost."
43. In para 69.3, the decisions of Supreme Court in R. Vishwanatha Pillai and in Dattatray of by Benches
of three Judges laying down the principle of law that where a benefit is secured by an individual-such as
an appointment to a post or admission to an educational institution--on the basis that the candidate
belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim
upon verification renders such appointment or the admission void or non est, are quoted with approval.
Thereafter, the Hon'ble Apex Court applies these principles to the respective challenges in appeals before it and in
para 78 it observes---
"78. The respondent has no right to claim protection of her services. The respondent has misused the
process of law by filing successive writ petitions to pre-empt an adjudication by the Judgment
wp1562.04 Scrutiny Committee and then confining the claim only to the protection of her services.
44. Cases of the respondents or their employers before us and defence of protection is clearly eclipsed by the law and
principles settled by the Hon'ble Apex Court in Food Corporation of India v. Jagdish Balaram Bahira, (supra). They
have avoided scrutiny by the Scrutiny Committee as it would have revealed truth and also succeeded in protecting
their jobs secured wrongfully.
45. Open category Petitioners legally recruited can not be placed or compared or asked to compete with those who
have no right to post. Restoring them to 28.11.2000 position is not countenanced by the verdict of Hon'ble Apex
Court in Jagdish (supra). If they are promoted or treated as accepted as promoted after 28.11.2000 as they succeed in
departmental promotion examinations in the year 2007 or some other year, their success itself prejudices the
petitioners. These dishonest protected ones can not steel the benefit of non-existent caste to enter public employment
and to accelerate on open category posts meant for present petitioners. Such wrongdoers can not be allowed to retain
benefit secured even prior to 28.11.2000. The Petitioners are assailing and entitled to challenge the retention of
benefits by protected ones prior to 28.11.2000. Hon'ble Apex Court declares their entry and this treatment void.
Petitioners before us, not parties to that adjudication in A.P. Ramtekkar definitely can challenge it. They can not be
silenced by invoking principles like "judgment in Judgment wp1562.04 rem" or "res-judicata" or "lack of locus".
46. Petitioners had no cause of action if the protected respondents remain in "reserved category" and do not come in
open category. The moment they switch to open category, they either become senior or junior of the Petitioners and
start competing with them in process of bettering their prospects. Petitioners are adversely affected at that stage and
hence, a cause of action accrues to them. Hence, objection that they do not have locus to approach this Court or based
on "res-judicata" need to be rejected.
47. In Vaish Aggarwal Panchayat vs. Inder Kumar and Ors. (25.08.2015 - SC) : MANU/SC/0927/2015, law laid down
by the Hon'ble Apex Court shows that the High Court of Punjab and Haryana was influenced by the finding recorded
by the trial court ignoring the fact that the conclusion has been arrived at by taking into consideration the averments
made in the plaint and the assertions put forth in the written statement. The cause of action for filing the suit was
different. The grounds urged in the suit were also quite different. On a perusal of the plaint alone it cannot be said that
the suit is barred by the principle of res judicata. The allegations in plaint in the instant case are completely different.
There is an asseveration of fraud and collusion; there is an assertion that in the earlier suit a decree was passed
because of fraud and collusion. Thus, the Hon'ble Apex Court found that High Court had fallen intoJudgment
wp1562.04 error by expressing the view that the plea of res judicata was obvious from the plaint. In the factual
matrix, there should have been a trial with regard to all the issues framed. Though these observations are at Order VII
Rule 11 of Civil Procedure Code stage, the impact of a different cause of action can be seen.
48. In Satyendra Kumar and Ors. vs. Raj Nath Dubey and Ors. (06.05.2016 - SC) : MANU/SC/0529/2016, Hon'ble
Apex Court lays down (i) in para 12 that the reasoning and correctness of the findings given by the High Court that
previous proceedings would operate as res judicata only in respect of issues of facts and not on issues of pure
questions of law when the subsequent suit or proceeding is based upon a different cause of action and in respect of
different property though between the same parties. The Hon'ble Apex Court was in agreement with the views of the
High Court and hence did not deem it necessary to go into further details of the legal concept of res judicata and
estoppel. Once a judgment in a former suit or proceeding acquires finality, it binds the parties totally and completely
on all issues relating to the subject matter of the suit or proceeding. This flows from Section 11 of the Code of Civil
Procedure which in turn is based upon ancient doctrines embodied in every civilized system of jurisprudence with
almost universal application that an earlier adjudication between the same parties is conclusive in respect of the same
subject matter. (ii) In paragraph 13 Hon'ble Court holds that the distinction drawn by the High Court in the impugned
judgment that anJudgment wp1562.04 erroneous determination of a pure question of law in a previous judgment
would not operate as res judicata in the subsequent proceeding for different property, though between the same
parties, was clearly in accord with Section 11 of the Code of Civil Procedure. When the cause of action as well as the
subject matter i.e., the property in issue in the subsequent suit are entirely different, res judicata is not attracted and
the competent Court is therefore not debarred from trying the subsequent suit which may arise between the same
parties in respect of other properties and upon a different cause of action. Hon'ble Apex Court in paragraph 14
explains that the (iii) Principle of estoppel operates against the party and not the Court and hence nothing comes in
the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted. The
issues of facts once finally determined will however, stare at the parties and bind them on account of earlier
judgments or for any other good reason where equitable principles of estoppel are attracted. This proposition of law
applies here with more vigour as Petitioners before us were not parties to A.P. Ramtekkar and the cause of action in
their favour springs after judgment delivered therein.
49. The employer Reserve Bank Of India has placed reliance upon State of U.P. v. Arvind Kumar Srivastava, (2015) 1
SCC 347 to justify its action of extending the protection to all employees who gave up their caste claim. In paragraph
22.1 to 22.3, the Hon'ble Apex Court points out the normal rule that Judgment wp1562.04 when a particular set of
employees is given relief by the court, that benefit needs to be extended to others identically situated. Not doing so is
discrimination and violative ofArticle 14 of the Constitution of India. This principle applies in service matters more
emphatically as the service jurisprudence evolved from time to time postulates that all similarly situated persons
should be treated similarly. However, exception to it are fence-sitters and employees guilty of larches, delays, and/or
the acquiescence. They are not entitled to benefit of this rule. This exception may not apply in those cases where the
judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons,
whether they approached the court or not. Such a situation can occur when the subject-matter of the decision touches
upon the policy matters, like scheme of regularization and the like (see K.C. Sharma v. Union of India). On the other
hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties
before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the
tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall
have to satisfy that their petition does not suffer from either latches and delays or acquiescence.
50. The Division Bench of this Court did not in matter of A.P. Ramtekkar lay down any policy decision or principle in
"rem". The field was occupied by a Judgment wp1562.04 legislative mandate and direction in derogation thereof is
found void by the Hon'ble Apex Court in case of Chairman and Managing Director, FCI and others .vrs. Jagdish
Balaram Bahira and others (supra). We have also found that open category employees like present petitioners to
whose detriment the policy or law in A.P. Ramtekkar was to operate, were not parties to that adjudication. Moreover,
such open category Petitioners had no cause of action at that juncture.
51. Respondents also cite Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551, to urge that change in
Court's view does not affect the law settled in A.P. Ramtekkar and consequential exercise. Paragraph 21 of the
Hon'ble Apex Court judgment reveals that there existed a judgment, inter partes, which had become final. Even when
the civil appeal was being heard, certain other parties claiming their interest in very lands had moved intervention
applications which were dismissed. At that time also it was mentioned that there were 195 applicants. However,
notwithstanding the same, the Hon'ble Apex Court issued firm directions to the State Government to recommend the
case of the petitioners for mining lease in both the areas. When such categorical and unambiguous directions attained
finality, merely because another judgment was delivered by the Hon'ble Apex Court in Sandur Manganese case, it
cannot be a ground to undo such directions contained in the judgment dated 14-3-2012. The Hon'ble Apex Court
clarifies that law laid down in Sandur Manganese4 may Judgment wp1562.04 be applied and followed by the State
Government in respect of other applications still pending. However, it cannot be pressed into service qua the
petitioner whose rights have been crystallized by the judgment rendered in its favour.
52. It is obvious that Petitioner before us have no cause to intervene in A.P. Ramtekkar and their cause has arisen after
that judgment. We can not hold that this Court took away the rights of open category employees without even herein
them or behind their back. In fact, none of the respondents have gone to the extent of urging such "taking away".
Court of law can not take away or affect the rights of parties not before it and if it does so, the affected party like
present Petitioners can very well seek review of such judgment. Had respective employers or their benefited
employees raised any such contention, they could not have assailed the locus of the Petitioners before us but at the
most forced open category Petitioners to apply for review of A.P. Ramtekkar(supra).
53. In Kalinga Mining Corpn. v. Union of India, (2013) 5 SCC 252, the Hon'ble Supreme Court in para 42 points out
that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The
correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res
judicata'. In para 44, the Hon'ble Judgment wp1562.04 Court observes that given the history of litigation between the
parties, which commenced in 1950s, the High Court was justified in finally giving a quietus to the same. The
subsequent interpretation of Rule 25-A by this Court, that it would have only prospective operation, in Saligram case,
would not have the effect of reopening the matter which was concluded between the parties. If the parties are allowed
to re-agitate issues which have been decided by a court of competent jurisdiction on a subsequent change in the law
then all earlier litigation relevant thereto would always remain in a state of flux. In such circumstances, every time
either a statute or a provision thereof is declared ultra vires, it would have the result of reopening of the decided
matters within the period of limitation following the date of such decision. These observations have no relevance here
as the Petitioners were not parties to and had no cause of action when A.P. Ramtekkar (supra) was decided. For the
same reasons We need not deal at length with the judgment of the Hon'ble Apex Court in Pradeep Kumar Maskara
and Others vs. State of West Bengal and Others
--(2015) 2 SCC 653, which in para 26 holds that a judgment interpartes can not be overlooked by a Tribunal because
a view to the contrary is later taken in other judgment. Reversal of a view on law by a later judgment of a superior
court or same court in other matter, is not a ground available for review.
54. The Respondents also urge that public interest litigation is not maintainable in service matters and rely upon
Bholanath Mukherjee and Judgment wp1562.04 Others vs. Ramakrishna Mission Vivekananda Centenary College
and Others ---(2011) 5 SCC 464. However, here we are looking into grievance of open category employees against
those who force their entry in open category without merit and succeed in retaining benefits to which they are
constitutionally not entitled. When there can not be any PIL in such a matter, it is apparent that neither they nor their
employer can argue that A.P. Ramtekkar lays down any law in Rem and present Petitioners lack locus to assail it. We
may here point out that the Division Bench of this Court in Writ Petition No. 6247 of 2015 - Organization for Rights
of Tribals v, State Of Maharashtra and its two other departments, has on 1.2.2018 quashed and set aside the G.R.
Dated 21.10.2015 which protected employments between 15.6.1995 to 17.10.2001. Adiwasi Sangharsha Samiti,
Nagpur and Koli Mahasangha Trust, Navi Mumbai appear as intervenors in it. However, their exact role is not clear.
The Division Bench has followed the law in Chairman and Managing Director, FCI and others .vrs. Jagdish Balaram
Bahira and others (supra).
55. In the light of this discussion, it is not necessary to labour more on the aspect of res-judicata and to refer to
observations of Hon'ble Apex Court in paragraph Nos. 38, 39, 40 and 48 in Dr. Subramanian Swamy v. State of Tamil
Nadu and others --- (2014) 5 SCC 75 and again distinguish it.
56. AIR 1981 SC 298 -- Akhil Bhartiya Soshit Karmachari Sangha Judgment wp1562.04 (Railway) vs. Union of
India and others (para 63) is relied upon to explain how the locus in such matters of general public importance needs
to be liberally understood. Same objection to tenability came to be rejected in paragraph Nos. 22 and 23 in
Confederation of Ex-Servicemen Assns. v. Union of India, (2006) 8 SCC 399, by the Hon'ble Apex Court. (2003)4
LLN 578-- Maval Taluka Genaral Kamgar Sanghatana and another vs. Kirkee Cantonment Board and others is the
Division Bench judgment of this Court wherein in public interest the order revoking suspension of respondent no. 4
was set aside. Respondent 4 was an accused in anti corruption matter charged with accepting Rs. 10,000/. In para 16,
this Court in larger public interest found it not proper to dismiss the petition for want of locus as act of "state"
under Art. 12 was assailed as illegal.
57. Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, is the judgment which points out the
difference in judgment in Rem and in personam. The Hon'ble Apex Court in paragraph 37 explains that a right in rem
is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected
solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the
parties themselves in the subject-matter of the case, whereas actions in rem refer to actions determining the title to
property and the rights of the parties, not merely among themselves but also against all persons at any time claiming
anJudgment wp1562.04 interest in that property. Correspondingly, a judgment in personam refers to a judgment
against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a
judgment that determines the status or condition of property which operates directly on the property itself. (Vide
Black's Law Dictionary.) These observations of the Hon'ble Court therefore show that a right existing in a party is
recognized and declared so that it operates against all concerned with it. In A.P. Ramtekkar's (supra) matter, the
petitioners therein (who are respondents before us) did never have any such right and as per law of land, their initial
joining or entry in public employment is "void". It was/is fraud on the Constitution and Public. No Court of law can
lend legitimacy to it. Respondents before us have and had no right to post and they in A.P. Ramtekkar's (supra) were
therefore not getting any such right recognized. Concept of judgment in rem has no application in their cases. When
the doctrine of res-judicata does not come into play, it is obvious that judgment of the Division Bench of this Court in
A.P. Ramtekkar's (supra) is not binding on anybody not party to it. Writ Petition No. 1512/2004 where the three
associations were also the co-petitioners, but cognizance of petition was not taken at their instance observing that
employee in position to agitate his individual claim must do so, factually also A.P. Ramtekkar's (supra) can not be
seen as decided in "rem".
58. Moreover, after the judgment of the Hon'ble Apex Court dated Judgment wp1562.04 6/7/2017 in Chairman and
Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (supra), it follows that the public
employers like Reserve Bank Of India and Food Corporation Of India also can not after said date, continue to comply
with or act as per A.P. Ramtekkar's (supra). They can not directly or indirectly, be party to a fraud or wrong and can
not permit public revenue to be lost by making it over to undeserving employees. Continuation of such employees is
against public interest and not at all only a service dispute. Petitioners before us who are law abiding citizens and
occupy the post on their merit, can always point out wrongful entry into service by his co-worker.
59. Food Corporation of India v. Jagdish Balaram Bahira, (supra) in paragraph 69.6 observes--
"69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect
of caste certificates issued prior to and subsequent to the enforcement of the Act on 18-10-2001. Finality
does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual
to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;"
We have reproduced following portion already but are constrained to quote it again in this context. In paragraph 55,
during discussion, Hon'ble Court observes--
Judgment wp1562.04 "The burden of proof that he or she belongs to such a caste, tribe or class lies with the claimant.
The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste,
tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category
is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant
of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved."
60. Thus, the Respondents before us are the persons who have consciously avoided "verification" and therefore there
is no finality to their caste certificate and caste claim. There caste certificate therefore is deemed to be canceled and
benefits released to them ie undue treatment as reserved employees from day one are liable to be withdrawn as
fraudulent. Grant of employment to them being itself found to be a fraud, it can not be perpetrated or allowed to be
accomplished by permitting them to continue even as open category employees. Treating them or counting them in
open category may itself seen as adding or furthering their dishonest intention entertained on the date of staking claim
as reserved candidate. Portion in bold letters emphasized supra from paragraph 56 of Food Corporation of India v.
Jagdish Balaram Bahira,(supra) militates with the defence of the Respondents before us. It is definitely a fraud on the
Nation, the Constitution and also on open category candidates whose prospects Judgment wp1562.04 of getting a post
are diminished. Other open employees like Petitioners before us therefore can make a grievance and seek their ouster.
Their grievance is not a simple cause of action arising in an ordinary service matter. They are pointing out to this
Court a design by which wrongdoers are cheating and continue to enjoy the fruits of their wrong. Objections to locus
of open category Petitioners or to tenability of present writ petitions are therefore misconceived. This elaboration is
necessary to show manifest fallacy in objections like Petitioners are not prejudiced because of promotion given to
protected employees who become senior to Petitioners because of date 28.11.2000 assigned to them, that the
protected employees performed better in departmental examinations or then Petitioners failed in it and hence
Petitioners are not aggrieved. Very fact that there can not be in law, an occasion to compare such "protected" with the
Petitioners is sufficient to put at rest all these frivolous contentions. If posts, promotional or otherwise, are not filled
as Petitioners do not qualify, the vacancies need to be subjected to fresh process, thereby bettering the chances of
open Petitioners. In this view of matter, it is not necessary to look into individual details of the promotions etc. of the
respective rival claimants. The contention or justification of the employer Food Corporation of India that it initially
did place such protected employees in a distinct cadre and it is because of the directions issued by this Court that they
were amalgamated in the "open" cadre and treated accordingly also therefore does not hold any water in these
petitions.
Judgment
wp1562.04
61. Even if it is accepted that Writ Petition No. 1562/2004

(present
petition), ought to have been decided on 01.11.2012 with other matters i.e., along with case of A.P. Ramtekkar, fact
that it could not be so decided is apparent. After the subsequent judgment of Hon'ble Apex Court in case of Food
Corporation of India v. Jagdish Balaram Bahira, supra, hearing before us can not be seen as "rehearing" of A.P.
Ramtekkar (supra). Order dated 11.8.2015 therein or dated 7.8.2015 in Writ Petition No. 640 of 2015 do not advance
the cause of protected respondents here and can not prejudice the rights of present Petitioners. Definitely, the
Petitioners are entitled to claim that their respective Employers have to conduct themselves as per mandate contained
in Food Corporation of India v. Jagdish Balaram Bahira,(supra). They can also pray for avoiding their comparison or
competition with reserved category protected employees whose caste certificates are either invalidated by the
Scrutiny Committee or then, who have avoided such verification.
62. We, therefore, quash and set aside the order of promotion dated 7.10.2016 in Writ Petition No.6740/2016 issued
by Respondent No.5 Food Corporation Of India therein.
63. We direct Respondents 1 to 3 in Writ Petition No. 1562 of 2004 to initiate necessary steps within next two months
to discontinue and terminate the "void" recruitment of all those on its roll who have given up their castes
and Judgment wp1562.04 continuing in service on the basis of "protection".
64. We also direct Respondents 1 to 3 in Writ Petition No. 258 of 2014 to initiate necessary steps within next two
months to discontinue and terminate the "void" recruitment of Respondents no. 5 to 140 on its roll who have given up
their castes and continuing in service on the basis of "protection".
65. The Food Corporation of India or the Reserve Bank Of India shall forthwith discontinue and not release any
payments or dues to the Respondent employees before this Court who have given up their castes and were/are still
continued by them.
66. The Food Corporation Of India or the Reserve Bank Of India shall also initiate necessary steps within next two
months to recover payments or dues released, from to the Respondent employees before this Court who have given up
caste claim.
67. Rule made absolute accordingly in all these Writ Petitions with no order as to costs.
68. In Contempt Petition No. 236/2016, Notice before admission has been issued on 26.07.2016. In Contempt Petition
No.34/2014, Notice has been Judgment wp1562.04 issued on 28.02.2014. On 18.12.2017, respective counsel for
petitioners and respondents pointed out that Contempt Petitions and Writ Petitions were to be heard finally.
69. In the light of developments in the field of law noted supra, namely judgment in case of Arun Vishwanath Sonone
.vrs. State of Maharashtra and ors (supra) and its overruling by the Hon'ble Supreme Court in case of Chairman and
Managing Director, FCI and others .vrs. Jagdish Balaram Bahira and others (supra ), we do not see any deliberate
disobedience by respondents in the matter. They have gone by the Division Bench judgment in case of A.P.Ramtekkar
(supra). Hence, we dismiss both the Contempt Petitions. No cost.
JUDGE JUDGE
Rgd.

Bombay High Court Judgement On Fake Caste Certificate and Termination of Service

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Bombay High Court Judgement On Fake Caste Certificate and Termination of Service

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Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

WRIT PETITION NO. 1562/2004 AND CONTEMPT PETITION NO.

(1) WRIT PETITION NO. 1562/2004

1. All Indian Adivasi Employees Federation

2. Motiram Chhatiram Kangale,

1. The Reserve Bank of India,

2. The Chief General Manager,

3. The Union of India,

4. The State of Maharashtra,

CONTEMPT PETITION NO. 236/2016.

All Indian Adivasi Employees Federation

Dr. Raghavendra Rao Road,

(2) WRIT PETITION NO. 258/2014

1. All Indian Adivasi Employees Federation

2. Nilay s/o Shyam Band,

3. Vinod s/o Prabhakar Deshmukh,

5. Kishor Govindrao Sonwane,

1. The Reserve Bank of India,

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Bank of India Building, Dr. Raghavendra

2. The Chief General Manager,

3. The Union of India,

4. The State of Maharashtra,

5. Gajanan Marotrao Nimje,

6. Chandrakant Balaji Paunikar,

7. Girish Baburao Nandanwar,

8. Shantaram Baburao Ninawe,

9. Ramesh Narayan Sonkusare,

10. Ramesh Hiramanji Hedaoo,

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11. Kashinath Shravan Khot

12. Smt. Hemlata Dinkar Kumbhare

13. Anilkumar Ganpatrao Deolikar

14. Smt. Nirmala Wamanrao Fegade

15. Goving Beniram Kohad,

16. Harishchandra Ganapati Bharadbhunje

17. Prakash Anantrao Rambhad,

18. Dipak Sitaramji Patil

19. Krishna Narayan Mohadikar

20. Janardhan Laxmanrao Mahajan

21. Kirankumar Abaji Sorte

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23. Ratnakar Wasudeorao Admane

24. Dhyaneshwar Wasudeorao Dekate

25. Vinod Biharilal Chourasia

26. Manohar Balaji Barapatre

27. Janardhan Narayan Sonkusale,

28. Ganpati Purushottamji Kumbhare

29. Hemantkumar Prabhakar Kumbhare

30. Tulsidas Baliram Nandanwar

31. Balwant Hemchandra Dharmik

32. Ravindra Mahadev Parhate

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33. Bhojraj Balaji Pounikar

34. Janrao Uasrao Nimje

35. Keshao Narayan Karamkar

36. Vijay Shamrao Kumbhare

37. Mukesh Ramchandra Mohadikar

38. Udaysingh Baldeosingh Dinore

39. Rajkumarsingh Gurudayalsingh Chauhan

40. Dewaji Jagannath Parate