Sau. Sandhya Chandrashekhar Lokhande vs The State of Maharashtra

R.M. Borde, J.—Heard.

Rule. Rule made returnable forthwith. With the consent of the parties, petition is taken up for final disposal at admission stage.

Petitioner who was employed as teacher in respondent no. 6 school operated by respondent no. 5 institution is assailing order of termination of her services issued on 15.02.2013 and seeking relief of re -instatement in service with consequential benefits. Petitioner also prays for issuance of direction to respondent nos. 5 and 6 not to insist upon her to furnish caste validation certification for continuation of her employment.

Some admitted facts giving rise to presentation of instant petition can be summarised as below :

Petitioner holds necessary qualification for appointment as Assistant Teacher and accordingly came to be appointed as Assistant Teacher by respondent no. 5 institution, initially for a limited period and was issued order of appointment granting permanency with effect from 13.09.1993. Initial appointment of petitioner as Assistant Teacher was made in the year 1989 and she was continued in employment until the date of issuance of order of termination i.e. 05.02.2013. Maiden name of petitioner is Bhagirathi Tatyaba Kapse and prior to her marriage she belonged to Maratha caste. Petitioner married with one Chandrashekhar Lokhande who belongs to Teli caste which is included in Other Backward Class category. Petitioner, taking advantage of Government Resolution dated 16.05.1966 claimed employment as a member belonging to Other Backward Class category. The State of Maharashtra issued resolution on 07.05.1999 prescribing therein that benefits available to the backward class can be extended to the children born from the wedlock between parents entering into inter -caste marriage. It is resolved that consequent upon solemnisation of inter -caste marriage, the spouse who belongs to higher caste would not be entitled to claim benefits of belonging to Other Backward Class category. State Government has taken decision in the year 1999 relying upon the ratio laid down by the Supreme Court in the matter of Mrs. Valsamma Paul Vs. Cochin University and others, Petitioner was served a notice on 26.10.2012 calling upon her to submit validation certificate issued by the competent Scrutiny Committee. Since petitioner could not furnish validation certificate show cause notice came to be issued by the management on 01.02.2013 calling upon her to submit validation certificate and in the event of her failure her services would be terminated. Petitioner furnished reply to the notice dated 01.02.2013 on 08.02.2013 and pointed out that in view of Government policy holding the field at the time of her appointment, her services are not liable to be terminated on account of her failure to furnish validation certificate. Petitioner sought leave to place reliance on few judgments delivered by this Court to substantiate her contentions. Respondent institution, however, without considering the explanation tendered by petitioner proceeded to issue order of termination on 15.02.2013 itself.

Petitioner has invited our attention to Government Resolution dated 16.05.1966 declaring that in case of marriage of a person belonging to Other Backward Class community with a woman not belonging to that community, the couple and their progeny claim to be belonging to the community of the father should be eligible for such concession that have been or may hereinafter be sanctioned to Other Backward Class. The progeny of such couple claiming to be belonging to the community of mother should not however be made eligible for concession sanctioned to Other Backward Class. The issue as to whether consequent upon inter-caste marriage, concession available to backward class community can also be claimed by a spouse not belonging to backward class, was a matter of consideration before the Supreme Court in the matter of Valsamma Paul Vs. Cochin University (cited supra) and, while deciding the matter the Supreme Court held that petitioner therein could not be held to belong to Thakur community which is listed as Scheduled Caste merely by incident of her marriage with a person who belongs to that community. In view of decision rendered by Supreme Court in Valsamma Paul''s matter, the State of Maharashtra took a decision on 07.05.1999 thereby cancelling earlier resolutions issued on 16.05.1966 as well as 19.10.1959. The State Government clarified that if male belonging to backward community enters into wedlock with non -backward women, he would be entitled to claim benefits available for backward community. The progeny borne out of the inter -caste marriage would also be entitled to claim the benefits available to the backward community i.e. the benefits which can be claimed by the male belonging to backward community however, benefits would not be available to the female not belonging to backward community, consequent upon her inter -caste marriage with a male belonging to backward community. It is evident that respondent employer in view of the decision rendered by the State Government in the year 1999 insisted upon petitioner to produce validation certificate and on account of her failure to submit validation certificate, proceeded to issue order of termination of her services.

Petitioner contends that she has not committed any fraud nor mis-represented the employer while securing employment. She could claim employment as a member of Other Backward Class on the basis of policy prescribed by the State Government which was in place at the relevant time. After continuing in employment for more than 23 years, respondent shall not be permitted to terminate her services and that she needs to be granted protection from ouster. Reliance is placed on a judgment in the matter of Vandana Vishwanath Londhe Vs. State of Maharashtra and others in Writ Petition No. 3583/2003 decided on 04.07.2003. In identical facts and circumstances, Division Bench of this Court, taking into consideration rendition of service for more than seven years by petitioner therein, directed quashment of the order of termination on certain terms and conditions. In paragraph nos. 4 and 5 of the judgment the Division Bench of this Court has observed thus :

In view of the judgment of the Supreme Court in Valsamma Paul''s case (supra), the petitioner is not entitled to the benefits which are conferred by the Presidential Order on the Thakar Community which is listed as a Scheduled Tribe. The petitioner does not become a member of that Scheduled Tribe merely by reason of her marriage with a person who belongs to it. There is no dispute about the position that the parents of the petitioner did not belong to any reserved community and that the petitioner by birth, therefore, does not belong to any community for which reservations have been provided.

However, the limited question which arises before the Court is as to whether, it would be appropriate and proper for the Fourth Respondent to terminate the services of the petitioner. The petitioner joined service as far back as in March 1995 and had put in over seven years of service by the time the order of termination was passed. This is not a case where there has been any suppression of fact on the part of the petitioner. Nor is it a case where the petitioner produced any bogus or fabricated documents. At the time when the petitioner joined service, the stated policy of the Government of Maharashtra was to encourage such inter-caste marriages by announcing that the benefit of reservation would be available to those couples and their progeny where one of them belongs to a reserved community. The legal basis of the policy of the Government of Maharashtra was undoubtedly not valid and in any event, in view of the judgment of the Supreme court in Valsamma Paul''s case, the petitioner cannot in law assert that she belongs to a Scheduled Tribe. However, having regard to the period of service which had been put in by the petitioner of over seven years with the Fourth Respondent and the other circumstances narrated earlier, we are of the view that the ends of justice would be served if the services of the petitioner are protected by an order of reinstatement subject to the condition that the petitioner undertakes not to claim to belong to any reserved category at any point of time. The undertaking to that effect tendered on behalf of the petitioner through Learned Counsel is accordingly accepted. This petition is accordingly disposed of with the direction that the Fourth Respondent shall reinstate the petitioner in service in the post in which she was serving. Though the petitioner would be entitled to continuity of service, there will be no order as regards the payment of back-wages. The service record of the petitioner shall also be corrected by the Fourth Respondent by incorporating a suitable entry therein to the effect that the petitioner does not belong to any reserved category.

Petitioner also places reliance on the judgment in the matter of Kavita Solunke Vs. State of Maharashtra and Others, In paragraph nos. 21 and 22 of the judgment, the Supreme Court has observed thus :

The following passage from decision in the Nimje''s case is apposite:

"In a situation of this nature, whether the Court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate Vs. State of Maharashtra and Others,

Applying the above to the case at hand we do not see any reason to hold that the appellant had fabricated or falsified the particulars of being a Scheduled Tribe only with a view to obtain an undeserved benefit in the matter of appointment as a Teacher. There is , therefore, no reason why the benefit of protection against ouster should not be extended to her subject to the usual condition that the appellant shall not be ousted from service and shall be re -instated if already ousted, but she would not be entitled to any further benefit on the basis of the certificate which she has obtained and which was 10 years after its issue cancelled by the Scrutiny Committee.

On consideration of judgments referred above and in view of the fact that petitioner was continued in service for about twenty three years, the order of termination issued by the management on 15.02.2013 deserves to be quashed and set aside. It also needs to be directed to respondent nos. 5 and 6 not to insist upon petitioner to furnish caste validation certificate for continuation of her employment. Learned counsel for respondent nos. 5 and 6 urge that since the order of termination has been issued by the management on 15.02.2013, in view of availability of alternate remedy of presentation of appeal to the school tribunal, instant petition need not be entertained. Considering the facts and circumstances of the case and on consideration of judgments referred above, we are of the view that petitioner need not be relegated to the school tribunal for availing alternate remedy. Considering the fact that petitioner has put in about twenty three years service and that while securing employment, the petitioner has not made any mis-representation or false claim, order of termination impugned in this petition needs to be quashed and set aside.

In this view of the matter, order of termination issued by respondent nos. 5 and 6 on 15.02.2013 directing termination of services of petitioner is quashed and set aside and respondents are directed to re -instate petitioner in service as Assistant Teacher. Petitioner would be entitled to continuity in service however, there shall be no order as regards payment of back-wages. Service record of petitioner shall be corrected by incorporating suitable entry therein to the effect that petitioner does not belong to any reserved category. Respondents are directed not to insist upon petitioner to produce caste validation certificate. Petitioner shall not be entitled to claim benefits as a member of Other Backward Class in future. Respondents shall comply with the direction of re -instatement of petitioner as expeditiously as possible, preferably within a period of eight weeks from today. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs.

Pending civil application, if any, does not survive and stands disposed of.