NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1094  OF 2012 [arising out of SLP (C) No. 23840 of 2007]

MOHD. ASIF … Appellant

Versus

STATE OF MAHARASHTRA & ORS. … Respondents

J U D G M E N T

CYRIAC JOSEPH, J.

1. Leave granted.

2. This appeal by special leave is filed against the judgment dated  

21.11.2007 passed by the Nagpur Bench of the High Court of Bombay  

dismissing  Writ  Petition  No.  995  of  2007  filed  by  Mohd.  Asif,  the  

appellant herein.   

3. According  to  the  appellant,  his  ancestors  were  residents  of  

Rajnandgaon which was earlier part of the State of Madhya Pradesh  

and  is  now  part  of  the  State  of  Chattisgarh.   According  to  the  

Certificate  dated  16.12.1988  issued  by  the  Naib  Tahsildar  of  the  

Rajnandgaon, the appellant belongs to Muslim Pathan Behna Caste

which was recognized as OBC (Other Backward Classes) in the State  

of Madhya Pradesh.  The appellant’s family had shifted to Kamptee in  

the  Nagpur  district  of  Maharashtra  and  had  become  permanent  

residents of Nagpur district.  Admittedly, caste ‘Behna’ is recognized  

as a Scheduled Caste in the State of Maharashtra.  

4. As per order dated 22.06.1992, the appellant was appointed as  

an  Assistant  Teacher  by  respondent  No.2  –  Municipal  Council,  

Bhandara  in  Nagar  Parishad  Urdu  High  School,  Bhandara  

(respondent  No.3)  run  by  the  said  Municipal  Council.   His  

appointment was in the category reserved for Scheduled Castes.

5. As per the Certificate dated 21.09.1995 issued by the Executive  

Magistrate,  Kamptee,  Nagpur,  the  appellant  belongs  to  the  caste  

‘Behna’  which  is  recognized  as  Scheduled  Caste  in  the  State  of  

Maharashtra.   

6. However, on the basis of a complaint dated 24.04.2003 filed by  

one Sattar Khan, President, Nagar Sudhar Nagrik Samiti, Bhandara,  

the  Divisional  Caste  Certificate  Scrutiny  Committee  (for  short  ‘the  

Committee) conducted an inquiry regarding the caste of the appellant.  

By an order dated 22.03.2006, the Committee came to the conclusion  

that  the appellant  failed to submit  proof/evidence to show that  he  

belongs to caste ‘Behna’  and rejected the appellant’s  claim that he  

belongs to caste ‘Behna’.  Challenging the order of the Committee, the  

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appellant filed Writ Petition No. 1993 of 2006 in the Nagpur Bench of  

the High Court of Bombay.  While the said Writ Petition was pending  

before the High Court, the Standing Committee of respondent No.2 –  

Municipal Council passed a Resolution dated 27.06.2006 treating the  

appointment of the appellant as an appointment in the open category.  

The  Standing  Committee  took  such  a  decision  in  the  light  of  

Maharashtra  Government  Order  dated  07.12.2001  permitting  

conversion of post reserved for Scheduled Castes in the Urdu medium  

schools into open category post and for filling up such post by open  

category candidates.  However, it was also stated in the Resolution of  

the  Standing  Committee  that  its  decision  will  be  subject  to  the  

decision of the High Court in the pending Writ Petition.  In the light of  

the  above-mentioned  Resolution  of  the  Standing  Committee,  the  

appellant sought permission of the High Court to withdraw his Writ  

Petition and accordingly Writ Petition No. 1993 of 2006 was disposed  

of as withdrawn on 10.08.2006.

7. After such disposal of the Writ Petition, in its General Meeting  

the  Municipal  Council  passed Resolution  No.  52 dated  08.09.2006  

approving  the  Resolution  dated  27.06.2006  of  the  Standing  

Committee treating the appellant as a candidate in the open category.  

In spite of the decisions of the Standing Committee and the Municipal  

Council, the Chief Officer of the Municipal Council appears to have  

sought  guidance  from  the  Director  of  Municipal  Administration,  

Nagpur and the Collector,  Bhandara regarding further  action to be  

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taken  in  the  matter.   The  Director  of  Municipal  Administration  

informed the Municipal Council that since the Caste Certificate of the  

appellant was invalidated by the Committee, new recruitment process  

should be started and in the new recruitment process, the appellant  

also could apply.

8. Thereupon, the appellant filed Writ Petition No. 995 of 2007 in  

the Nagpur Bench of the High Court of Bombay challenging the order  

dated  23.11.2006  of  the  Director  of  Municipal  Administration  

directing to start new recruitment process.  There was also a prayer  

for  a  direction  to  the  respondents  to  continue  the  services  of  the  

appellant  on  the  same  post  by  treating  him  as  an  open  category  

candidate and grant him all  consequential  benefits.   The said Writ  

Petition was dismissed by the High Court as per the impugned order  

dated 21.11.2007.

9. From a perusal of the impugned judgment of the High Court, it  

is seen that the appellant raised an alternative contention based on a  

Government  Resolution  dated  30.06.2004  which,  according  to  the  

learned  Additional  Government  Pleader,  was  only  applicable  to  the  

candidates belonging to Scheduled Tribes.  The High Court accepted  

the  contention  of  the  learned  Additional  Government  Pleader  and  

dismissed the Writ Petition without considering the Resolution dated  

27.06.2006  of  the  Standing  Committee  and  the  Resolution  dated  

08.09.2006  of  the  Municipal  Council  by  which  the  appellant  was  

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treated as a candidate in the open category and also the Government  

Resolution  dated  07.12.2001  based  on  which  the  said  Resolutions  

were passed.  Therefore, we are of the view that the High Court failed  

to properly consider the claims and contentions of the appellant and  

the impugned judgment is  vitiated by non-application of  mind and  

hence liable to be set aside.

10. Therefore we set aside the impugned order of the High Court  

and remand the  matter  back to  the  High Court  with  a  request  to  

consider the matter afresh and pass appropriate orders in the writ  

petition in accordance with law as early as possible.  All contentions of  

the parties are left open.  Till such fresh disposal of the writ petition,  

status  quo  as  on  today  shall  be  maintained  with  regard  to  the  

appointment of the appellant.

11. The appeal  is  allowed to the above extent.   There will  be no  

order as to costs.

…..………………………………….J. (CYRIAC JOSEPH)

…..…………………………………J. (RANJANA PRAKASH DESAI)

New Delhi; January 27, 2012.

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