It is most significant to note that in an extremely laudable, learned, landmark and latest judgment titled Om v. State of Maharashtra and Anr & Shital v. State of Maharashtra and Ors. in Writ Petition No. 6750 of 2022 and Writ Petition No. 6771 of 2022 that was reserved on July 7 and then finally pronounced on July 22, 2022, a Full Bench (FB) of the Bombay High Court comprising of Chief Justice Dipankar Datta, Justice Ravendra Ghuge and Justice Vibha Kankanwadi has ruled that a compassionate appointee for a reserved category post wouldn’t be exempted from submitting a caste validity certificate especially if the original holder of the post didn’t produce a caste certificate during his lifetime. This was so ruled by the Full Bench while dismissing two writ petitions seeking directions to the Department of Rural Development to exempt the petitioners from producing a caste certificate since their appointment was on compassionate grounds. The Court analysed the submissions made and various precedents cited and concluded that no other court had dealt with the question of law in this matter.
At the outset, this brief, brilliant and balanced judgment authored by Justice Ravindra V Ghuge for a Full Bench of the Bombay High Court comprising of Chief Justice Dipankar Datta who wrote a separate concurring judgment, himself and Justice Smt Vibha Kankanwadi first and foremost puts forth in para 7 that, “During the course of hearing in the matters, the issue arising for consideration of the Larger Bench has been formulated by us as under: –
“Whether, a compassionate appointee, is not required to submit a caste/tribe validity certificate when the parent had secured employment, on the basis of a caste/tribe certificate, on a post which was specifically reserved for a backward category and who did not submit a validity certificate until his/her demise while in service?””
Writ Petition No. 6750 of 2022
It is material to note that the Bench discloses in para 10 that, “In the first petition, the petitioner’s father died while in service on 03.11.2013. He was employed as a Junior Assistant. Undisputedly, his appointment was on the said post reserved for the Scheduled Tribe category. His entry in service was purely on account of his claim of belonging to the Munnervarlu-Scheduled Tribe and he produced his tribe certificate as a primary evidence to support his claim. His service book, undisputedly, contained such entry.”
Truth be told, the Bench then specifies in para 11 that, “When the petitioner-Om Bhagwanrao Anjanwad was issued the appointment order dated 29.11.2019, it was specifically mentioned therein that he is appointed on compassionate ground in view of the demise of his father and the said post of Assistant Engineer (Class-III) was reserved for the Scheduled Tribe category. It was also specifically ordered that he would submit his tribe validity certificate within six months from the date of his joining. His proposal for validation would be forwarded as soon as he joined employment. If he failed to submit the tribe validity certificate, he would be relieved from employment by efflux of time.”
Writ Petition No. 6771 of 2022
Going ahead, the Bench then states in para 12 that, “In the second petition, the petitioner’s father was working as a Teacher with the Zilla Parishad. He had entered employment as a Teacher on the basis of his claim that he belonged to the Munnervarlu-Scheduled Tribe. He secured employment only because he belonged to the Scheduled Tribe and he produced his tribe certificate. Based on such selection and appointment, an entry was made in his service book. He died while in service on 01.06.2012.”
Of course, the Bench then stipulates in para 13 that, “The petitioner Shital d/o deceased Govindrao Bainwad was appointed as a Supervisor in the Integrated Child Development Project vide appointment order dated 11.12.2020. The said post was reserved for the Scheduled Tribe. It was specifically set out, amongst other conditions of service, that she will have to submit her tribe validity certificate within six months from the date of joining. If she failed to submit a tribe validity certificate, she would be relieved from employment by efflux of time. It is on these conditions that she accepted the appointment order.”
ANALYSIS AND CONCLUSIONS
Needless to say, the Bench then points out in para 22 that, “We have noticed two orders passed by the Division Bench of this Court at the Principal Seat, dated 18.10.2016 delivered in Writ Petition No.2687/2014 filed by Shashikant Bhagawant Dhale vs. The State of Maharashtra and others and dated 24.10.2016 passed in Writ Petition No.6177/2016 in Sudarshan Virswami Chenna vs. Divisional Caste Scrutiny Committee and another, which have not been cited before us. We are considering these two orders, which are based on the view taken in Vinodkumar Singh (supra).”
It is then stated in para 23 that, “In Shashikant Dhale (supra), the father of the petitioner was declared medically unfit. Shashikant was appointed on compassionate basis in his place. The appointment order did not indicate that he was appointed on a reserved category post. Relying upon Vinodkumar Singh (supra), it was concluded that once the appointment order was made on compassionate ground and no reservation policy is made applicable, the compassionate appointee is not required to submit a validity certificate. In Sudarshan Chenna (supra), the claim of Sudarshan was invalidated on 22.01.2016. He was appointed as a talathi on compassionate ground on 16.10.2000. It was not indicated that he was appointed on a reserved post. Once again reliance was placed on Vinodkumar Singh (supra) and the same view was followed.”
Quite ostensibly, the Bench then observes in para 24 that, “It is, thus, apparent that in all the judgments/orders referred to above, the issue that we have framed below paragraph 7, was never addressed to the Court. All along, since it has been canvassed in the cited reports that the compassionate appointment order did not mention that the appointee was being inducted in service on the reserved post by virtue of the reserved post occupied by his father, that the various Division Benches of this Court have held that the facts in those cases do not indicate as to whether, the reservation was made applicable to the case of the compassionate appointee.”
Quite analytically, the Bench then points out in para 25 that, “We have cast the issue in paragraph 7 in the light of the submission that the foundation of compassionate appointment lays on the fact of the parent’s entry in employment. Whether, the compassionate appointee, whose basis of entry in employment is his parent’s entry in employment, would mandate such an employee to submit a validity certificate after the father had secured employment on a post reserved for a backward category. Such issue, we do not find, was addressed to the Courts, which passed the earlier orders. This issue was also not raised in Pramod Shivaji Shinde (supra), Sunita Thakar (supra), Umeshkumar Nagpal (supra), Balaji More (supra) and also in Rekha Sayanna Totawar (supra), which is the earliest judgment of the Division Bench of this Court delivered at Aurangabad on 24.08.2011. In Savita Koli (supra), the Division Bench expressed it’s doubts about the requirement of a validity certificate by a compassionate appointee, whose entry in service was on the basis of his father’s entry in employment on a post reserved for the backward category. Even in this case, the issue framed by us was not taken up for adjudication by the Division Bench.”
Quite frankly, the Bench then aptly concedes in para 26 noting that, “Therefore, while considering the submissions advanced at the Bar by the learned counsel for the respective sides and on perusing the cited reports/orders, we need to consider as to, whether, the obligation of a deceased parent to justify his selection to a post reserved for a backward category by tendering a validity certificate, would stand nullified after his death and hence, whether, the compassionate appointee will be absolved from tendering a validity certificate. This was never addressed to the Division Bench of this Court and even not before the Hon’ble Supreme Court.”
Most forthrightly, the Bench mandates in para 39 that, “In our considered view, the submission of the validity certificate by a candidate having secured employment on the basis of reservation on a post reserved for the backward category would be a sine qua non. The procedure for selection and the prescription of the eligibility criteria has a significant public element in enabling the State to make a choice amongst the competing claims. The selection of an ineligible person is a manifestation of a systemic failure, which has a deleterious effect on good governance. If such candidates are permitted to occupy posts and evade submission of validity certificates for years or decades and after the unfortunate demise of such a person in harness, paving the way to compassionate appointment treating the post to be from the open category and redeem the compassionate appointee from the obligation of submitting the validity certificate, which his father was legally obliged to submit in order to legalize his appointment, would be detrimental to the entire class of persons for whom the reservations are intended. Excluding such members or depriving a legitimate candidate of an appointment, as a result of the recruitment granted to an impostor would violate the rights of genuine candidates. We cannot permit the illegality to be perpetrated by absolving the compassionate appointee from tendering a validity certificate, which his father was legally obliged to tender.”
Adding more to it, the Bench then stipulates in para 40 that, “We are of the view, based on Jagdish Balaram Bahira (supra), that good governance would mandate that a compassionate appointee who gains entry in employment only on the basis of his father’s appointment to a post reserved for a backward category, has to submit his validity certificate. To make such law effective, it would be imperative that the candidate should not be regularized in compassionate employment until he/she submits the caste/tribe validity certificate within a particular period after being appointed on compassionate basis. We are not of the view that such submission of the validity certificate be made a precondition for appointment, since compassionate appointment has to be granted urgently and keeping the candidate waiting until he/she submits a validity certificate, would defeat the purpose for which the compassionate appointment is to be granted. However, acceptance of the contention of the petitioners that they are not required to submit validity certificates, despite their respective parents having obtained entry in public service on reserved posts for the backward property, would amount to creating a mode of backdoor recruitment which the law does not countenance.”
Quite significantly, the Bench then opines in para 41 that, “In the above backdrop, we are of the view that the reserved category post occupied by the deceased employee would not be converted into an open category post after the demise of the employee. His entry in employment being on the basis of his reservation, would not alter the reservation applicable to the post. The said post would continue to be reserved for that category since a vacancy has suddenly occurred due to the demise of the employee, paving way for compassionate appointment.”
Be it noted, the Bench then clearly states in para 42 that, “We, therefore, hold that the legal heir being granted compassionate appointment in view of a vacancy created by the demise of the parent, who was appointed on the post reserved for a backward category believing that he did belong to such category, will mandate the compassionate appointee to tender the validity certificate soon after gaining the compassionate employment.”
Most commendably, the Bench then graciously holds in para 45 that, “However, in order to give an opportunity to both these petitioners, we direct the petitioners to submit their caste/tribe certificates to their respective employers within 15 days. The said employers would forward the claims of these petitioners to the competent scrutiny committee for validation as soon as possible but invariably within thirty days of such submission. The competent scrutiny committee shall then conduct the proceedings and ensure that the proceedings are completed within one year from the date of receipt of the claim papers. Until such claims are decided, the services of both these petitioners shall not be dispensed with. Their confirmation orders, if not yet issued, would be kept in abeyance till such decision of the competent scrutiny committee. If validity certificate is produced, follow-up steps to confirm/continue them in service will be taken without any delay. Should validity certificate be refused and such order of refusal be not interfered at an interim stage of any proceedings that may be brought before the Court by the petitioners, they will have to step down from the respective posts held by them subject to the result of such proceedings.”
Finally and far most significantly, the Bench then holds in para 46 that, “Before parting, we make two things clear. First, if the parent of the compassionate appointee during his service tenure had submitted the validity certificate as proof of belonging to the particular backward category for which the post was reserved, the compassionate appointee may not again be required to produce the validity certificate. This is because the compassionate appointee inherits the caste/tribe of his/her parent and should not be asked to prove his/her caste/tribe status twice over. Secondly, if the deceased employee had not submitted the validity certificate as proof of belonging to the particular backward category for which the post was reserved, it shall be the duty of the employer, while calling upon the compassionate appointee to produce the validity certificate, to indicate with sufficient degree of clarity and reliable material that his/her parent obtained entry in public service on a post reserved for the backward category. This direction is made bearing in mind cases where the deceased employee, despite participating in the process as a candidate belonging to a backward category, might have secured appointment competing with open category candidates on his/her own merit and appointed against an open/unreserved vacancy and not against the reserved vacancy but the service book records that he/she belongs to a particular caste/tribe. Merely because of such an entry, production of validity certificate in such cases should not be insisted upon and the compassionate appointee harassed.”
It is worth noting that the Chief Justice in his separate but concurring judgment makes it clear in para 2 that, “A public office is not heritable. The general rule of appointment to public service is through open invitation and on merits. Compassionate appointment, it is well known, is an exception to such general rule. The object thereof is to mitigate the hardship due to the death of the bread-earner in the family by providing an appointment to an eligible dependent of the deceased to redeem the family in distress. In essence, compassionate appointment is a matter of policy of the employer and no appointment can be directed to be made contrary to such policy; hence, any claim for a compassionate appointment has to be in accordance with the policy/guidelines framed in this behalf and cannot be claimed as a matter of right. However, if any such policy exists, there cannot be a denial of the right of consideration for such appointment. These are very basic principles.”
It cannot be glossed over that the Chief Justice on reservation makes it emphatically clear in para 5 that, “Turning to ‘reservation’, it has in our country attained a particular legal significance in matters relating to public employment. It connotes the setting apart of posts for being filled up by special categories of candidates. The Constitution of India provides for protective discrimination and reservation to enable the disadvantaged group to come on the same platform as that of the forward caste, thereby seeking to achieve a balance between the rights of the backward classes and the general stream. However, concededly, no citizen can claim reservation as of right since the provisions of Articles 15 and 16 of the Constitution are merely enabling provisions.”
Most fundamentally, we see that the Chief Justice then points out in para 6 that, “Since reservation is intended to bring about adequate representation of such categories as are not adequately represented in the services as well as empowerment of the backward classes, it is axiomatic that the object and purpose for reservation in public services are secured for the rightful claimants. Such policy can never produce the desired results if the reserved posts are occupied by persons other than those for whom they are set apart.”
While taking potshots at misuse of reservation system, the Chief Justice hastens to add in para 8 that, “What has been experienced in our country for quite some time past is that the dishonest spare no opportunity to obtain benefits and privileges, which are not meant for them, by fraud or deceit. A post reserved for a backward caste being occupied by a candidate of a forward caste led the Supreme Court to observe in R. Vishwanatha Pillai (supra) that where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, and in such a situation Article 311 of the Constitution is not attracted at all. It was also held that a person obtaining appointment illegally will not be entitled to pension even since his appointment is void and non est in the eye of law, notwithstanding that he has served the employer for long years. Indeed, the judgment takes a very strong stance befitting the situation and sending a message, loud and clear, that dishonesty in the long run does not pay.”
Most notably, while stressing the importance of validity certificate, Chief Justice held in para 10 that, “Without production of the validity certificates, the deceased employees had only an inchoate right to continue on the posts they held. Their appointments on reserved posts could be seen as legal and valid in law, only upon production of the validity certificates. So long they did not produce the validity certificates, they all along stood on the edge of a precipice. But for their unfortunate death, they were constantly under a statutory obligation to produce the validity certificates. Had the employer acted against them according to the provisions of the 2000 Act for non-production of the validity certificates during their lifetime, they would have been out of service and without the means of livelihood. Such a situation of losing service as well as pensionary benefits would have left the family members high and dry. If such a situation could not have been redeemed in any manner, I have failed to comprehend how the tragic circumstance of death of an employee, who had not in his lifetime produced the validity certificate, could operate to the advantage of his family members for securing an appointment on compassionate ground in his place which is contingent on ‘death’. The right to be considered duly for a compassionate appointment being consequential to the death of his/her parent, it is irrelevant whether the dependent family member has been appointed, on compassionate ground, on an open or unreserved post. The primary right to seek an appointment on compassionate ground flows from the fact that the father/mother was in public service and his/her appointment was legal and valid, in the sense that he enjoyed the protection guaranteed by Article 311 of the Constitution or the security of service provided by other laws. Accepting the claims of the petitioners and holding that they need not produce validity certificates, on the face of their admission that their respective fathers were appointed on reserved posts, would amount to approval of the Court of the failure/omission/neglect of the deceased employees to discharge their statutory obligation of producing the validity certificates though they held posts which undoubtedly were not meant for them. If an usurper of a public office for decades does not have any right to claim pensionary benefits, a fortiori, any dependent family member of such usurper of public office can have no better rights than him. The petitioners having come into the picture after death of their fathers could not have better rights than their fathers. Allowing them to cling on to the posts, which came in their way fortuitously, would be unjust, unfair and inequitable. Securing the just entitlements of legitimate claimants would be difficult, if not impossible, if the contentions of the petitioners were accepted.”
Finally, Chief Justice holds in para 12 that, “Adequate protection has been carved out in the judgment for all compassionate appointees standing on the same footing as the petitioners and it is, therefore, just and proper that as directed by His Lordship the petitioners produce the validity certificates failing which consequences would follow as per law.”
All said and done, we thus see that the Full Bench of the Bombay High Court has thus made it abundantly clear that tribal’s son who was appointed on compassionate grounds must produce caste certificate if not submitted by parent. This must be certainly strictly implemented also as directed. No denying it!
Sanjeev Sirohi