Bombay High Court
Shri.Date Tanaji Honaji vs The Secretary on 29 April, 2010
Author: R.G.Ketkar
Bench: P. B.Majmudar, R.G.Ketkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7740 OF 2008
Shri.Date Tanaji Honaji )
Residing at Kakde Park-B, )
Room No.M/2/9, Tanaji Nagar, )
Chinchvadgaon, Pune 411 033. ).. Petitioner
V/s
1.The Secretary, )
State of Maharashtra, Tribal Development )
Department, Mantralaya, Mumbai 400 032. )
2.The Commissioner, ig )
Tribal Research & Training Institute, )
28, Ranibaug, Pune-1. )
3.The Divisional Commissioner, )
Pune Division, Pune-411 001. )
4.The Commissioner )
Pimpri Chinchwad Municipal Corporation )
Pune-18. )
5.The Director, )
Tribal Research & Training Institute )
28, Ranibaug, Pune-1. )
6.The Deputyh Director, )
Caste Scrutiny Committee, )
Pune Division, Pune-411001. )
7.The Deputy Director, )
Caste Scrutiny Committee, )
Nashik Division, Nasik, )
8.The Tahsildar & Executive Magistrate, )
Rahuri, Dist: Ahmednagar, )
Maharashtra State. )
9.The Sub-Divisional Officer, )
Shrirampur Sub-Division )
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Dist: Ahmednagar, Maharashtra State. )
10.The Tahsildar & Executive Magistrate, )
Taluka Mawal (Vadgaon), District: Pune )
11.Prithviraj Vasant Kamble )
Resident of "Shree Harsh" Plot No.128/2, )
Green Park Housing Society, )
Walhekarwadi Road, Bijalinagar, )
Chinchwadgaon, Pune 411033. ).. Respondents
Mr.S.D.Thokade for the Petitioner.
Mr.V.A.Gangal, Special Counsel with Mrs.M.P.Thakur & Mr.Ashok Gade,
AGPs for the State.
Mr.Sudhir Prabhu for Respondent No.4.
Mr.R.K.Mendadkar for Respondent No.11.
WITH
WRIT PETITION NO.8696 OF 2009
Prithviraj Vasant Kamble, )
aged 40 years, residing at )
"Shree Harsh", Plot No.128/2, )
Green Park Housing Society, )
Walhekarwadi Road, Bajali Nagar, )
Chinchwad, Pune- 411 033. ) .. Petitioner
V/s
1.State of Maharashtra, )
through its Secretary, )
Tribal Development Department, )
Mantralaya, Mumbai-32. )
2.Scheduled Tribe Certificate Scrutiny Committee, )
Pune Division, Pune, through its Member )
Secretary, having its office at 28, Queen's )
Garden, Pune- 411 001. )
3.Tahsildar and Executive Magistrate, )
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Wadgaon Maval, Dis;trict: Pune. )
4.Additional Commissioner, )
for Tribal Development )
Nasik, Dist: Nasik. )
5.Pimpri Chinchwad Municipal Corporation )
through its Commissioner, Pune-411 018. )
6.Date Tanaji Honaji, )
residing at Kakade Park B, )
Room No.M/2/9, Tanaji Nagar, )
Chinchvadgaon, Pune- 411 033. ).. Respondents
Mr.R.K.Mendadkar for the Petitioner.
Mr.V.A.Gangal, Special Counsel with Mrs.M.P.Thakur & Mr.Ashok Gade AGPs
for the State.
Mr.Sudhir Prabur for Respondent No.5.
Mr.S.D.Thokade for Respondent No.6.
CORAM: P. B.MAJMUDAR &
R.G.KETKAR, JJ.
DATE : 29th April, 2010
JUDGMENT:(Per R.G.Ketkar, J.)
1. By Writ Petition No.7740 of 2008 filed under Article 226 and 227 of the Constitution of India, the petitioner-Date Tanaji Honaji (hereinafter referred to as the Petitioner) inter-aila has prayed for direction to Respondent Nos.1 to 10 to hold fresh inquiry regarding the caste certificates and certificate of validity issued in favour of Respondent No.11 Pritviraj Vasant Kamble (hereinafter referred to as Respondent No.11) and after inquiry if it is found that those ::: Downloaded on - 09/06/2013 15:54:12 ::: 4 certificates were obtained by producing false affidavits, documents and/or mis-representation, suppression of true and correct facts by the Respondent No.11, the said certificates may be cancelled forthwith and the Respondent No.11 may be prosecuted for the same;
for direction to the Respondent Nos.1 to 10 to take appropriate action against the persons/officers who have granted these caste certificates, certificate of validity in favour of the Respondent No.11 without following proper procedure and ascertaining the true facts and/or collusively granting the certificates; direction to Respondent No.4-The Municipal Commissioner of the Municipal Corporation of the City of Pimpri Chinchwad (for short P.C.M.C.) to grant promotion to the petitioner as Chief Sanitary Inspector w.e.f. 1998 and also grant all further and consequential benefits and promotions from the said deemed date.
2. By Writ Petition No.8696 of 2009, filed under Article 226 of the Constitution of India by Prithviraj Vasant Kamble (Respondent No.11) has inter-alia prayed for quashing and setting aside the order dated May 22, 1987 passed by Respondent No.2, Scheduled Tribe Certificates Scrutiny Committee, Zonal Division Pune, (hereinafter referred to as the Scrutiny Committee, Pune); for quashing and setting aside Report/order made/passed by added Respondent No.7- Scheduled Tribes Caste Scrutiny Committee, Thane (hereinafter ::: Downloaded on - 09/06/2013 15:54:12 ::: 5 referred to as the Scrutiny Committee, Thane) on February 1, 2010;
for declaration that the certificate of validity dated January 1, 2004 issued by the Committee for Scrutiny and Verification of Tribe Claims, Nashik Division, Nashik (hereinafter referred to as Scrutiny Committee, Nashik), is valid and subsisting. Since both these petitions raise common questions of facts and law, the same are being disposed of by this common judgment.
3. It is the case of the petitioner that he was appointed as fitter operator with the P.C.M.C. on January 23, 1991. He belongs to Scheduled Tribes category. On July 20, 1995 he was promoted as Sanitary Inspector. The Respondent No.11 was appointed as Sanitary Inspector on September 1, 1992 on the basis of his claim that he belongs to Mahadeo Koli, being the Scheduled Tribe. On May 17, 2005 the Respondent No.11 was promoted as Chief Sanitary Inspector. The petitioner claims that bye-passing his claim to the post of Chief Sanitary Inspector, the Respondent No.11 was promoted on the basis of false certificate produced by him claiming to be belonging to Scheduled Tribe category. The Respondent No.11 obtained caste certificate Caste/SR/625/85 dated June 24, 1985 issued by Tahasildar and Executive Magistrate, Vadagaon Maval, District Pune (for short "Tahasildar, Pune"). The Respondent No.11 approached the Scrutiny Committee, Pune for verification of his tribe claim as he ::: Downloaded on - 09/06/2013 15:54:12 ::: 6 intended to prosecute further studies. The Scrutiny Committee, Pune considered the material on record produced by the Respondent No.11 and came to the conclusion that he does not belong to Mahadeo Koli Scheduled Tribe and as such, his claim towards the same was invalidated. It was held that the Respondent No.11 belongs to Koli caste and as such, the original caste certificate dated June 24, 1985 issued by Tahasildar, Pune was cancelled and confiscated. The copy of the order dated May 22, 1987 was forwarded to the Respondent No. 11 for information and necessary action at the following address:
"Patryachi Chawl, Marimata Mal, Room No.B-10, Lonawala, 410401 District Pune."
4. The Respondent No.11 was further informed that as per the instructions contained in G.R.dated March 8, 1985 there is a remedy of appeal, against the decision of the Scrutiny Committee. The candidate aggrieved by the decision of the Scrutiny Committee should submit their appeal to the Appellate Authority viz. Additional Commissioner for Tribal Development, Nashik within 15 days from the date of receipt of the Scrutiny Committee's decision. A copy of the said order was also forwarded to the Tahasildar, Pune and the Collector & District Magistrate, Pune for information and necessary action.
5. It is the case of the Respondent No.11 that he did not receive the ::: Downloaded on - 09/06/2013 15:54:12 ::: 7 copy of the order dated May 22, 1987 passed by the Scrutiny Committee Pune. He approached Tahasildar, Pune for issuing the caste certificate. Accordingly, on July 14, 1987 Tahasildar, Pune issued caste certificate certifying that the Respondent No.11 belongs to Hindu Mahadeo Koli community. The said certificate was issued on the strength of his School Leaving Certificate issued by V.P.S.High School, Lonawala No.1430 dated January 24, 1967. The Respondent No.11 was appointed as a Sanitary Inspector on September 1, 1992 on the basis of the caste certificate dated July 14, 1987. It is the case of the Respondent No.11 that the second caste certificate dated July 14, 1987 was mis-placed and accordingly he approached the Tahasildar, Pune for issuing the caste certificate. The said authority issued third caste certificate on May 19, 1990. When the post of Chief Sanitary Inspector was to be filled in, it appears that the P.C.M.C. called upon the Respondent No.11 to produce the certificate of validity. The Respondent No.11 approached the Sub-Divisional Officer, Shrirampur Sub-Division, Shrirampur (for short S.D.O. Shrirampur), claiming that he and his family are ordinary residents of village Kolewadi, Tal.Rahuri, District Ahmednagar. The S.D.O. Shrirampur issued caste certificate on November 15, 2003 to the effect that Respondent No.11 belongs to Hindu Mahadeo Koli which is recognized as a Scheduled Tribe under the Constitution (Scheduled ::: Downloaded on - 09/06/2013 15:54:12 ::: 8 Tribes) Order, 1950. On the strength of this caste certificate the Respondent No.11 made application to the Scrutiny Committee, Nashik on December 2, 2003 for verification of his caste claim. The Scrutiny Committee, Nashik upheld his claim by order dated December 12, 2003 and issued certificate of validity on January 1, 2004. On the strength of this certificate of validity dated January 1, 2004, the Respondent No.11 was promoted to the post of Chief Sanitary Inspector on May 17, 2005. It seems that in the meantime, the petitioner had raised objection on February 9, 2004 about the certificate of validity dated January 1, 2004 issued by the Scrutiny Committee, Nashik, followed by notice through Advocate on April 16, 2004. The concerned officer of the P.C.M.C. put up office note in May 2004 for soliciting the orders on the question as to whether the Respondent No.11 should be promoted to the post of Chief Sanitary Inspector without his claim being verified by the Scrutiny Committee, Pune. The office note records that the Respondent No.11 had produced caste certificate dated July 14, 1987 from Tahasildar, Pune and on that basis he was appointed as a Sanitary Inspector on September 1, 1992. If he has produced the caste certificate from Tahasildar, Pune then he must obtain certificate of validity in respect of the said certificate dated July 14, 1987 from the Scrutiny Committee, Pune. Even the caste certificate dated November 15, ::: Downloaded on - 09/06/2013 15:54:12 ::: 9 2003 issued by S.D.O. Shrirampur was in respect of Educational purposes and not for employment purposes. The said certificate was verified by the Scrutiny Committee Nashik. It was therefore submitted that the Respondent No.11 should not be given promotion to the post of Chief Sanitary Inspector unless he gets his claim verified from the Scrutiny Committee, Pune. It however seems that the Respondent No.11 was promoted to the post of Chief Sanitary Inspector on May 17, 2005. The petitioner also relied upon the complaint dated March 1, 2007, made by Ms.Mohini Prithviraj Kamble, wife of the Respondent No.11 to the Director of the Scrutiny Committee, Pune, as also Municipal Commissioner of the P.C.M.C. wherein she set out that the respondent no.11 originally belongs to Mauje Mudhavi, Taluka Mangalvedha, District Solapur and is Hindu Koli by caste. He obtained the certificate by falsely claiming that he belongs to Mahadeo Koli, a Scheduled Tribe.
6. The petition was heard for admission on November 26, 2008 when the Court was pleased to issue notices to the Respondents returnable on December 10, 2008. The Respondent No.11 filed reply dated June 22, 2009 inter-alia challenging the locus of the petitioner to challenge the certificate of validity dated January 1, 2004. It was submitted that the petitioner was promoted to the post of Sanitary Inspector w.e.f.July 20, 1995 whereas the Respondent No.11 was ::: Downloaded on - 09/06/2013 15:54:12 ::: 10 directly appointed to the said post on September 1, 1992. It was therefore submitted that the petitioner is very much junior to the Respondent No.11. He further alleged that the petitioner is cheater and has played fraud upon various sections of the Society. Reference was also made to the charge-sheet dated December 6, 2008 issued by the P.C.M.C. and pendency of the departmental enquiry against the petitioner in terms of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. It was further submitted that his application for verification was referred to the Scrutiny Committee, Pune when he intended to prosecute further studies. However, the Scrutiny Committee, Pune did not inform him any decision taken thereon. It was submitted that the Respondent No.11 did not receive order dated May 22, 1987 alleged to have been passed by the Divisional Commissioner, Pune Division, Pune till date. It was further contended that the Respondent No.11 originally belongs to Ahmednagar District. He made application to the S.D.O. Shrirampur for grant of the caste certificate. The said authority issued caste certificate in the prescribed form after confirming genuineness of his claim and accordingly caste certificate dated November 15, 2003 was issued. After obtaining the said caste certificate, he moved the Scrutiny Committee, Nashik, who, after conducting thorough home and school enquiry and after objective and subjective satisfaction ::: Downloaded on - 09/06/2013 15:54:12 ::: 11 issued certificate of validity dated January 1, 2004. The Respondent No.11 justified not filling the information in Form E about the proceedings before the Scrutiny Committee, Pune on the ground that he was not aware as to what happened before the said Committee.
On these among other grounds, he opposed the petition.
7. On behalf of the P.C.M.C., affidavit was made by Balu Genu Pawar, Administrative Officer on June 25, 2009. It was contended that the P.C.M.C., was not aware of any decision dated May 22, 1987 taken by the Scrutiny Committee, Pune. The Respondent No.11 was promoted to the post of Chief Sanitary Inspector on the basis of caste certificate dated November 15, 2003 issued by the S.D.O. Shrirampur and the said certificate was validated by the Scrutiny Committee, Nashik. The certificate of validity was issued by the Scrutiny Committee Nashik on January 1, 2004. It was also submitted that the order dated May 22, 1987 passed by the Scrutiny Committee, Pune and the certificate of validity dated January 1, 2004 issued by Scrutiny Committee, Nashik, both are in existence. In view of this it was submitted that the petition deserves to be dismissed.
8. On behalf of the Scrutiny Committee Nashik, Ms.Jija Sampatrao Sane, Senior Research Officer made an affidavit on June 29, 2009 upon perusing the official record pertaining to the subject matter of the case and on the basis of information derived therefrom. It was ::: Downloaded on - 09/06/2013 15:54:12 ::: 12 submitted that the Respondent No.11 had duly filled in Form E, as also Form F. In clause 20(3) of Form E pertaining to validation or invalidation of claim from the applicants paternal side, the Respondent No.11 did not fill any information. In so far as Form F is concerned, it was submitted that the Respondent No.11 only mentioned the names of the persons whose claims were validated.
He however did not disclose that his claim was invalidated by the Scrutiny Committee, Pune. It was further contended that the Respondent No.11 suppressed the fact that he obtained caste certificate from Tahasildar, Pune which was subsequently invalidated by the Scrutiny Committee Pune by order dated May 22, 1987. It was therefore submitted that the Respondent No.11 did not appear before the Scrutiny Committee, Nashik with clean hands. It was also asserted that the Respondent No.11 obtained caste certificate dated November 15, 2003 from the S.D.O. Shrirampur fraudulently and submitted the same before the Scrutiny Committee, Nashik and obtained the certificate of validity fraudulently. She further contended that the Respondent No.11 obtained three caste certificates from the various authorities viz. Caste certificates dated June 24, 1985, July 14, 1987 & May 19, 1990 from the Tahasildar, Pune and from the S.D.O. Shrirampur on November 15, 2003. It was reiterated that the Respondent No.11 obtained the certificate of ::: Downloaded on - 09/06/2013 15:54:12 ::: 13 validity from Scrutiny Committee, Nashik by suppressing the material facts and by practicing fraud and the said certificate of validity deserves to be cancelled and confiscated in the interest of genuine Scheduled Tribes.
9. The matter was thereafter heard before the Division Bench of this Court on July 27, 2009. The Court directed Mr.M.K.More, Research Officer to get the original file of Scrutiny Committee, Nashik and produce it in the Court on Monday- August 3, 2009. The Court also directed the Member Secretary Mr.D.D.Mayee who had signed the certificate dated January 1, 2004 to remain present in the Court on the said date. The petitioner made affidavit in rejoinder dated July 6, 2009 in reply to the affidavits made by the P.C.M.C., Scrutiny Committee Pune and the Respondent No.11. It was reiterated that the Respondent No.11 has obtained the certificate of validity dated January 1, 2004 fraudulently and that the P.C.M.C. has not taken requisite steps against the Respondent No.11. It was also submitted that the Scrutiny Committee, Nashik did not follow the due process of law while issuing the certificate of validity on January 1, 2004.
However, Ms.Sane rightly pointed out that the Respondent No.11 obtained the certificate of validity fraudulently. He therefore prayed that strict action be taken against the Respondent No.11 for fraudulently obtaining the certificate of validity.
::: Downloaded on - 09/06/2013 15:54:13 ::: 1410.On August 14, 2009 Ms.Surekha Arvind Shewale, Dy.Director (Research) of the Scrutiny Committee, Nashik made an affidavit. It was set out therein that the order dated December 12, 2003 passed by the Scrutiny Committee, Nashik including the original file could not be traced in the office of the Scrutiny Committee, Nashik. It was set out that as per the information furnished by the Respondent No. 11 in clause No.9 (A) of the Form he disclosed that the ordinary residence of his forefathers is Taluka Rahuri, District Ahmednagar. As per the information furnished in the application, it showed affinity with Mahadeo Koli, a Scheduled Tribe. Thus, considering all the facts, the Scrutiny Committee, Nashik passed order on December 12, 2003 validating the caste certificate of the Respondent No.11. The Scrutiny Committee, Nashik was satisfied about the genuineness of the Tribe claim as per Rule 12 of the Maharashtra Scheduled Tribes (Regulations of Issuance and Verification of) Certificate Rules, 2003 (for short the Rules). It was reiterated that the certificate of validity was issued to Respondent No.11 on January 1, 2004 after following the due procedure. It was further submitted that the original record of the certificate of validity dated January 1, 2004 was in the office of the Scrutiny Committee, Nashik for one and half years i.e.till the time the petitioner collected the information under the Right to Information Act from the Scrutiny Committee, Nashik. However, from ::: Downloaded on - 09/06/2013 15:54:13 ::: 15 the record it appeared that the original proceedings were not kept in the file. It was lastly submitted that since the Scrutiny Committee, Nashik is unable to produce the original file as also the order dated December 12, 2003, the Scrutiny Committee, Nashik is ready and willing to re-examine the tribe claim of the Respondent No.11 in accordance with law.
11.Ms.Jija S.Sane, Senior Research Officer, Scrutiny Committee Nashik made an additional affidavit pointing out therein that the Committee issued show cause notice dated August 25, 2009 calling upon the Respondent No.11 to show cause as to why the action of confiscating the certificate of validity should not be taken against him. It was set out that when the case came for hearing on August 23, 2009 the Court directed production of the file. When the Committee took search of the file, it was found that the said file was missing. The search was taken with Caste Scrutiny Committee situate at Nandurbar, and since the file was not available with the Scrutiny Committee, Nashik as also Scrutiny Committee, Nandurbar, complaint was lodged to the Senior Police Inspector Sarkarwada Police Station, Nashik on August 27, 2009. It was submitted that the file is mis-placed or stolen only after June, 2005.
12.The matter was heard before the Division Bench on November 18, 2009 and by order dated December 2, 2009 the Court issued certain ::: Downloaded on - 09/06/2013 15:54:13 ::: 16 directions to which reference will be made at appropriate place.
Suffice is it to say that the Court directed the Scrutiny Committee, Thane to adjudicate the show cause notice dated August 25, 2009 issued by the Scrutiny Committee, Nashik to the Respondent No.11 in accordance with law as expeditiously as possible, but at any rate within a period of two months after giving an opportunity to the Respondent No.11 to defend the show cause notice. The Court also recorded that the Respondent No.11 has filed Writ Petition No.8696 of 2009 at the fag end of hearing of Writ Petition No.7740 of 2008 challenging the order dated May 22, 1987 passed by the Scrutiny Committee Pune. By order dated November 17, 2009, the Court directed for clubbing of both the petitions together.
13.Pursuant to the order passed by this Court, the Scrutiny Committee, Thane adjudicated the show cause notice dated August 25, 2009 and submitted report/order dated February 1, 2010. The Respondent No. 11 amended Writ Petition No.8696 of 2009 filed by him and challenged the report/order dated February 1, 2010 of the Scrutiny Committee, Thane.
14.We have heard Mr. S.D.Thokade, learned counsel for the petitioner, Mr. V. A. Gangal, learned Special Counsel for Respondent Nos.1 to 3 and 5 to 10, Mr. Sudhir Prabhu, learned counsel for Respondent No.4
- P.C.M.C. and Mr. R.K.Mendadkar, learned counsel for Respondent ::: Downloaded on - 09/06/2013 15:54:13 ::: 17 No.11 at length. We have also perused the record that was made available to us.
15.Mr.Thokade, learned counsel for the petitioner submitted that the Respondent No.11 had obtained first caste certificate on June 24, 1985 from Tahasildar, Pune on the basis that his ordinary place of residence is in Pune District. He approached the Scrutiny Committee, Pune for verification of his caste claim as he intended to prosecute further studies. The Scrutiny Committee, Pune called upon the father of the Respondent No.11 to produce certain documents to establish affinity to Mahadeo Koli, a Scheduled Tribe. The Respondent No.11 and his father participated before the Scrutiny Committee, Pune and were also heard by the said Committee. By order dated May 22, 1987 the Scrutiny Committee Pune, after considering the material on record, came to the conclusion that the Respondent No.11 belongs to Koli caste and does not belong to Mahadeo Koli, a Scheduled Tribe. The Scrutiny Committee, Pune forwarded the copy of the said order to the Respondent No.11 at the address mentioned in the application. There is presumption of the existence of the fact viz.service of the said order upon the Respondent No.11, regard being had to common course of natural events, human conduct and public and private business in their relation to the facts of the particular case and the Court may presume that the official acts ::: Downloaded on - 09/06/2013 15:54:13 ::: 18 have been regularly performed. The order dated May 22, 1987 passed by the Scrutiny Committee, Pune clearly records that the copy of the said order was forwarded to the Respondent No.11 on the address mentioned by him in his application. There is presumption that the copy of the said order sent by the said Committee was duly served upon the Respondent No.11. The Respondent No.11 has now falsely claimed that he never received the copy of the said order and he was also not aware as to what transpired before the Scrutiny Committee, Pune. He submitted that this is patently false and fraudulent attempt on the part of the Respondent No.11 in denying service of the order dated May 22, 1987 passed by the Scrutiny Committee, Pune.
16.Mr.Thokade, further submitted that assuming for the sake of argument that the Respondent No.11 was not served with the copy of the order dated May 22, 1987 passed by the Scrutiny Committee Pune, the human conduct and common course of natural events would require that the Respondent No.11 would at least make enquiries in the office of the Scrutiny Committee, Pune as regards the verification of his caste claim. However, the affidavit made by Respondent No.11 does not disclose any such attempt having been made by him. He also submitted that the Respondent No.11 again approached the Tahasildar, Pune for obtaining the caste certificate once again on the basis that he is ordinary resident of Pune District.
::: Downloaded on - 09/06/2013 15:54:13 ::: 19The said authority issued second caste certificate on July 14, 1987.
On the strength of this certificate, the Respondent No.11 was appointed as a Sanitary Inspector by the P.C.M.C. on September 1, 1992. The P.C.M.C. ought to have referred the caste claim of the Respondent No.11 to the Scrutiny Committee, Pune at the earliest and at any rate in the year 1998 since the Respondent No.11 got appointment on the basis that he belongs to Scheduled Tribe.
However, the P.C.M.C. did not refer the claim of the Respondent No. 11 to the Scrutiny Committee, Pune which reflects sheer callous attitude on the part of the P.C.M.C. . Even the Respondent No.11 did not approach the Scrutiny Committee, Pune for verification of his caste certificate dated July 14, 1987.
17.He further submitted that the Respondent No.11 was obviously served with the order dated May 22, 1987 passed by the Scrutiny Committee, Pune and therefore, he applied again to the Tahasildar, Pune for issuing second caste certificate for the purpose of securing employment in the P.C.M.C. The Respondent No.11 claimed that the certificate dated July 14, 1987 was lost and therefore he approached the Tahasildar, Pune for issuing third certificate, which was eventually issued on May 19, 1990. Here also he claimed that he is ordinary resident of Pune District. Even after obtaining the caste certificate on May 19, 1990, neither the Respondent No.11 nor ::: Downloaded on - 09/06/2013 15:54:13 ::: 20 P.C.M.C. sent claim of the Respondent No.11 for verification to the Scrutiny Committee, Pune. Mr.Thokade, submitted that the Respondent No.11 realised that his claim was already turned down by the Scrutiny Committee, Pune in 1987. He therefore approached the S.D.O. Shrirampur purportedly claiming that his forefathers are ordinary residents of Ahmednagar District. The S.D.O. Shrirampur issued caste certificate on November 15, 2003. In the application dated December 2, 2003 made by Respondent No.11 to the Scrutiny Committee, Nashik, he did not disclose that his earlier claim was turned down by the Scrutiny Committee, Pune in 1987. From the perusal of the information furnished by the Respondent No.11 in the application dated December 2, 2003, the Scrutiny Committee, Nashik ought not to have enertained his application at all. Whereas the Respondent No.11 made an application to the Scrutiny Committee Nashik on December 2, 2003, the claim was verified by the Scrutiny Committee, Nashik by passing an order on December 12, 2003 i.e.hardly within 10 days from the receipt of the application and the certificate of validity was issued on January 1, 2004. Thus he submitted that hardly within 10 days, the claim of the Respondent No.11 was accepted. His case was not even sent to Vigilance Cell for necessary enquiries. He submitted that the judicial notice may be taken that the caste claims are not decided by the concerned ::: Downloaded on - 09/06/2013 15:54:13 ::: 21 Committees for the months together. However, in the instant case, within a period of 10 days the claim of the Respondent No.11 was validated. He therefore strongly criticised the manner in which the Scrutiny Committee, Nashik conducted itself in upholding the claim of the Respondent No.11.
18.He further submitted that when this Court called upon the Scrutiny Committee, Nashik to produce the original file as also the order dated December 12, 2003, the response of the Scrutiny Committee, Nashik is that the original file as well as the order dated December 12, 2003 are missing. He therefore submitted that the officials attached to the Scrutiny Committee, Nashik and the Respondent No. 11 are hand in gloves. Though the petitioner pointed out to the P.C.M.C. about rejection of the caste claim of Respondent No.11 as also submitted order dated May 22, 1987, still the P.C.M.C. did not take requisite action against the Respondent No.11. He submitted that the least that was expected from the P.C.M.C. was to revert the Respondent No.11 to the post of Sanitary Inspector and thereafter terminate the services of the Respondent No.11 for falsely claiming appointment on the basis that he belongs to Scheduled Tribes. No such action was taken by the P. C. M. C.
19.Mr. Thokade, invited our attention to the order of the Division Bench dated December 2, 2009 in Writ Petition No.7740 of 2008. Pursuant ::: Downloaded on - 09/06/2013 15:54:13 ::: 22 to the said order, the Scrutiny Committee, Thane adjudicated the show cause notice dated August 25, 2009 issued by the Scrutiny Committee, Nashik to the Respondent No.11 and the said Committee submitted its report dated February 1, 2010. In the light of the said report dated February 1, 2010, Mr.Thokade submitted that even the Scrutiny Committee, Thane, came to the conclusion that the Respondent No.11 obtained the certificate of validity dated January 1, 2004 from the Scrutiny Committee, Nashik fraudulently and by suppressing the material facts from the said Committee. He therefore urged that since the caste certificates as also the certificate of validity dated January 1, 2004 are obtained by Respondent No.11 fraudulently and by suppressing the material facts, these certificates are liable to be confiscated. The Respondent No.11 has rendered himself liable for prosecution. Though he belongs to Koli caste and does not belong to Mahadeo Koli, a scheduled tribe, the Respondent No.11 represented to the authorities as belonging to Mahadeo Koli.
The Respondent No.4- P.C.M.C. may be directed to terminate the services of the Respondent No.11. He further submitted that the Respondent No.4 P.C.M.C., be directed to promote the petitioner as Chief Sanitary Inspector w.e.f. 1998 by granting all the consequential benefits and further promotion on the basis of deemed promotion as Chief Sanitary Inspector w.e.f.1998. In support of these submissions, ::: Downloaded on - 09/06/2013 15:54:13 ::: 23 learned counsel Mr.Thokade has relied upon the following judgments:-
(1) A.V. Papayya Sastry and Others V/s.Govt.of A.P. & Others, (2007) 4 SCC 221, to contend that the fraud vitiates the judicial acts whether in rem or in personam. The judgment, decree or order obtained by fraud has to be treated as non-est and nullity, whether by the court of first instance or by final court.
(2) Union of India & Others V/s.Deepak Y. Gotefode, 2008 (1) Mh.L.J. 790, to contend that the Respondent No.11 obtained the caste certificates as also the certificate of validity fraudulently. He has obtained the appointment by using these certificates. The Respondent No.11 is therefore not entitled to the protection of his services.
(3) Additional General Manager, Human Resouce, BHEL Ltd.V/s.Suresh Ramkrishna Burde, 2007 (4) Mh.L.J.1, to contend that where the appointment is secured on the basis of false certificate, the employee cannot be permitted to retain the benefit of the wrong committed by him and his services are liable to be terminated.
(4) Regional Manager, Central Bank of India V/s.Madhulika Guruprasad Dahir & Ors., 2008 (5) Supreme 400, to contend that that the appointment obtained on the basis of fraudulent caste certificate is liable to be cancelled. The equity, sympathy and the generosity has no place where the original appointment rests on the ::: Downloaded on - 09/06/2013 15:54:13 ::: 24 false caste certificate. A person who enters the service by producing a false caste certificate, deprives the genuine candidate falling in the reserved category and hence, the Respondent No.11 does not deserve any sympathy or indulgence of this Court.
20.Mr. V. A. Gangal, learned Special Counsel appearing for Respondent Nos.1 to 3 and 5 to 10 submitted that the petitioner had obtained certificate dated June 24, 1985 from the Tahasildar, Pune. The original caste certificate dated June 24, 1985 was adjudicated upon by the Scrutiny Committee, Pune. By order dated May 22, 1987 the Scrutiny Committee, Pune invalidated the claim of the Respondent No.11 that he belongs to Mahadeo Koli, a scheduled tribe. The copy of the said order was forwarded to Respondent No.11 at the address given in the application as also the copy was forwarded to Tahasildar, Pune for information and necessary action. The Respondent No.11 did not challenge the order dated May 22, 1987 passed by the Scrutiny Committee, Pune by filing appeal before the Additional Commissioner, Tribal Development, Nashik in terms of G.R.dated March 8, 1985. The petition filed by the Respondent No.11 challenging the order dated May 22, 1987 suffers from gross delays and latches. The copy of the said order was also submitted to the Collector and District Magistrate, Pune for information and necessary action. In pursuance of this order, the Collector, Pune, addressed a ::: Downloaded on - 09/06/2013 15:54:13 ::: 25 letter dated June 24, 1987 to Tahasildar, Pune calling upon him to declare that the caste certificate of the Respondent No.11 indicating that he belongs to Mahadeo Koli is cancelled and it may be brought to the notice of the concerned officers wherever the Respondent No. 11 claimed benefits under the said certificate. He further directed Tahasildar, Pune, to prosecute the Respondent No.11 as per the provisions of the Indian Penal Code, 1860 for obtaining the caste certificate by furnishing false information. He further directed Tahasildar, Pune, to forward the name and the designation of the officer who issued the said certificate, to the Revenue Department for holding departmental enquiry. The Collector called upon Tahasildar, Pune to submit the compliance report by a returned post.
21.Mr.Gangal submitted that notwithstanding this letter, the Tahasildar, Pune issued second caste certificate dated July 14, 1987 and on the basis of that certificate, the Respondent No.11 secured employment with the P.C.M.C., as a sanitary inspector in the year 1992. In the proceedings before the Scrutiny Committee, Pune, the Respondent No.11 reported that his ordinary place of residence is in Pune District.
In fact, on that basis, the Respondent No.11 obtained caste certificates from Tahasildar, Pune on June 24, 1985, July 14, 1987 and lastly on May 19, 1990.
22.Mr.Gangal submitted that, however, when the Respondent No.4- ::: Downloaded on - 09/06/2013 15:54:13 ::: 26 P.C.M.C., intended to consider promotion to the post of Chief Sanitary Inspector, the Respondent No.11 was called upon to produce certificate of validity. The Respondent No.11 instead of getting caste certificate dated July 14, 1987 or even May 19, 1990 validated from the Scrutiny Committee, Pune approached the S.D.O. Shrirampur, Shrirampur, representing that his ordinary place of residence is in Ahmednagar District. Mr.Gangal submitted that Respondent No.11 suppressed the fact that on earlier occasions it was Tahasildar, Pune, who had issued caste certificates and that the ordinary place of residence of Respondent No.11 is Pune District. He further submitted that Respondent No.11 also suppressed that the Scrutiny Committee, Pune invalidated his claim by order dated May 22, 1987. In fact the S.D.O. Shrirampur, was not competent authority to issue caste certificate dated November 15, 2003.
23.Apart from this, Mr.Gangal submitted that in the application dated Decembere 2, 2003 made by Respondent No.11 to the Scrutiny Committee, Nashik for verification of caste claim, the Respondent No. 11 suppressed the material facts. He also suppressed that earlier Scrutiny Committee, Pune had invalidated his caste claim. He therefore submitted that even the Scrutiny Committee, Nashik did not have the jurisdiction to consider the claim of Respondent No.11, considering the fact that the ordinary place of residence of ::: Downloaded on - 09/06/2013 15:54:13 ::: 27 Respondent No.11 is Pune District. Mr.Gangal further submitted that the Respondent No.11 deliberately approached S.D.O. Shrirampur, for obtaining caste certificate in 2003 as the validity of the said certificate can be adjudicated by the Scrutiny Committee Nashik i.e.to say other than the Scrutiny Committee, Pune. This was in fact, deliberately done as earlier the claim of Respondent No.11 was turned down by the Scrutiny Committee, Pune.
24.Mr. Gangal invited our attention to the affidavit dated June 29, 2009 made by Ms.Jija Sampatrao Sane, Senior Research Officer, Scrutiny Committee, Nashik. In the affidavit of Ms.Jija Sane, it is contended that the Respondent No.11 obtained certificate of validity from Scrutiny Committee, Nashik by suppressing the facts and by practicing fraud and consequently the certificate of validity is liable to be cancelled and confiscated in the interest of genuine Scheduled Tribes. It is further contended that the Respondent No.11 is liable to be punished under the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as "the Act").
25.Mr.Gangal submitted that the Scrutiny Committee, Nashik issued the show cause notice to Respondent No.11 on August 25, 2009. In terms ::: Downloaded on - 09/06/2013 15:54:13 ::: 28 of the order dated December 2, 2009 the Scrutiny Committee, Thane adjudicated the show cause notice and also came to the conclusion that the Respondent No.11 practiced fraud and also suppressed the material facts while obtaining the caste certificate from S.D.O. Shrirampur, as also the certificate of validity dated January 1, 2004 from the Scrutiny Committee, Nashik. He therefore urged that appropriate directions be passed in that regard. In support of these submissions, Mr.Gangal relied upon the following judgments:-
(1) S.P.Chengalvaraya Naidu ((Dead) by LRs V/s.Jagannath (Dead) by LRs & Ors., (1994) 1 SCC 1, to contend that non-
disclosure of relevant and material documents by Respondent No.11 with a view to obtaining advantage, amounts to fraud and hence the order obtained by non-disclosure of these documents amounted to fraud to the Court and the said order is liable to be set aside.
(2) State of Maharashtra & Ors.V/s.Ravi Prakash Babulalsing Parmar & Another, AIR 2007 SC 295, to contend that the caste scrutiny committee is a quasi-judicial body and has been set up to serve the social and constitutional purposes. It is constituted to prevent fraud on the constitution.
(3) Bank of India & Another V/s.Avinash D.Mandivikar & Ors., (2005) 7 SCC 690, to contend that the Respondent No.11 has fraudulently obtained the caste certificates as also the certificate of ::: Downloaded on - 09/06/2013 15:54:13 ::: 29 validity. Since his appointment was on the basis that he belongs to Mahadeo Koli, a scheduled tribe, the very foundation of his appointment collapses and there is no appointment in the eyes of the law.
(4) Sanjeev G.Devre & Others V/s.State of Maharashtra & Others, 2004 (1) ALL M.R. 75, to contend that the recourse to the proceedings under Article 226 of the Constitution is permissible even if the alternate remedy is available, as the Respondent No.11 has fraudulently procured caste certificates as also the certificate of validity.
(5) State of Maharashtra & Others V/s.Sanjay K.Nimje, 2007 (2) ALL M.R.911, to contend that the Respondent No.11 is not entitled to the protection of his services.
(6) Murlidhar Ramkrishna Gathe V/s.State of Maharashtra & Others, 2007 (4) ALL M.R.212, to contend that the burden is on the candidate appearing before the Scrutiny Committee to lead the evidence in support of his claim of belonging to a scheduled tribe.
(7) Devendra Gurunath Khedgikar V/s.Scheduled Tribe Certificate Scrutiny Committee, Pune and Another, 2009 (3) Mh.L.J.433, to contend that the order dated December 12, 2003 passed by the Scrutiny Committee, Nashik and the certificate of validity dated January 1, 2004 are vitiated by mis-representation or ::: Downloaded on - 09/06/2013 15:54:13 ::: 30 fraud.
(8) (F.B.), Shilpa Vishnu Thakur V/s.State of Maharashtra & Others, 2009 (3) Mh.L.J.995 to contend that the object of the Act is to ensure that only the genuine persons obtain the benefit of reservation and that the false and fraudulent claims are excluded.
(9) R.Vishwanatha Pillai V/s.State of Kerala & Others, (2004) 2 SCC 105, to contend that the appointment procured against the reserved post by producing false caste certificate is void and non-est.
26.Mr. R.K.Mendadkar, learned Counsel for Respondent No.11 in W. P. No. 7740/2008 and for the Petitioner in W. P. No. 8696/2009 submitted that the Respondent No.11 had obtained the caste certificate dated June 24, 1985 for the purpose of prosecuting further studies. Though the Respondent No.11 approached the Scrutiny Committee, Pune for validation, the Respondent No.11 was never informed about the outcome of the proceedings before the Scrutiny Committee, Pune. The Respondent No.11 was not served with the copy of the order dated May 22, 1987 and consequently, the Respondent No.11 was unaware of any such order. The Respondent No.11 also could not challenge the said order earlier as he was not served with the copy of the said order. The Respondent No.11 therefore approached Tahasildar, Pune and obtained caste certificate dated July 14, 1987. On that basis he got employment as a Sanitary ::: Downloaded on - 09/06/2013 15:54:13 ::: 31 Inspector in Respondent No.4- P.C.M.C. Since the said certificate was misplaced, the Respondent No.11 approached the Tahasildar, Pune, who issued caste certificate on May 19, 1990. He submitted that the Respondent No.4-P.C.M.C. did not call upon him to get his claim verified from the competent authority. It was only in the year 2003 when the promotion to the post of Chief Sanitary Inspector was under consideration of the P.C.M.C., the Respondent No.11 was called upon to produce the certificate of validity. Considering the provisions of the Act and in particular Section 2(b) of the Act, he approached the S.D.O. Shrirampur, Shrirampur, as the Respondent No.11 originally belongs to Ahamednagar District.
27.Mr.Mendadkar submitted that the S.D.O. Shrirampur in turn, on the basis of verification of the claim of the Respondent No.11 by Tahasildar, Rahuri issued caste certificate on November 15, 2003. The Tahasildar, Rahuri was satisfied about the claim of the Respondent No.11 that he originally belongs to Ahmednagar District. In support of this fact, the Respondent No.11 relied upon the documents showing that he originally belongs to Ahmednagar Distrtict. He therefore submitted that the S.D.O. Shrirampur, was justified in issuing the caste certificate. Since the caste certificate issued by the S.D.O. Shrirampur falls within the territorial jurisdiction of the Scrutiny Committee, Nashik, the Respondent No.11 made an ::: Downloaded on - 09/06/2013 15:54:13 ::: 32 application on December 2, 2003 to it. The Scrutiny Committee, Nashik, on the basis of the subjective and objective satisfaction came to the conclusion that it was not necessary to refer the case of the Respondent No.11 to the Vigilance Cell. Mr. Mendadkar invited our attention to the affidavit dated April 6, 2010 made by Mr. Anand Limaye, who was at the relevant time working as Additional Commissioner, Tribal Development, Nashik and the Vice Chairman of the Scrutiny Committee, Nashik. Relying upon the said affidavit, Mr. Mendadkar submitted that the Scrutiny Committee, Nashik did have jurisdiction as the certificate issuing authority viz. S.D.O. Shrirampur falls within the territorial jurisdiction of the Scrutiny Committee, Nashik. Since there were no suspicious circumstances in the case of the Respondent No.11, the Scrutiny Committee, Nashik did not call the report of the Vigilance Cell. It is only when the documents produced by the applicant create suspicion in the mind of the members of the Scrutiny Committee, the matter is referred to the Vigilance Cell for home and school enquiry. Since the Respondent No. 11 produced the validity certificates of blood relatives and the information supplied by him was sufficient, the Scrutiny Committee, Nashik issued certificate of validity. He further submitted that the decision of the Scrutiny Committee, Nashik was unanimous and bonafide. He submitted that considering the affidavit of Mr. Limaye, ::: Downloaded on - 09/06/2013 15:54:13 ::: 33 the Scrutiny Committee, Nashik was justified in issuing the certificate of validity on January 1, 2004.
28.In so far as the report dated February 1, 2010 made by the Scrutiny Committee, Thane is concerned, Mr.Mendadkar submitted that the report has been made in gross violation of the principles of natural justice. In that behalf he submitted that the members of the Scrutiny Committee, Thane acted as the prosecutor as well as Judge. The members of the Scrutiny Committee, Thane collected various documents and information behind the back of the Respondent No.
11. The information and the documents collected by the members of the Scrutiny Committee, Thane were not furnished to the Respondent No.11. He further submitted that the report dated February 1, 2010 is not in conformity with the procedure laid down under the Act for validating the caste claim. He therefore urged that the order dated May 22, 1987 passed by the Scrutiny Committee, Pune as well as the report dated February 1, 2010 made by the Scrutiny Committee, Thane deserves to be quashed and set aside thereby upholding the certificate of validity dated January 1, 2004 issued by the Scrutiny Committee, Nashik. He urged that the Writ Petition No.8696 of 2009 preferred by the Respondent No.11 deserves to be allowed in terms of prayers made therein and the Writ Petition No.7740 of 2008, being devoid of substance, deserves to be dismissed. In support of ::: Downloaded on - 09/06/2013 15:54:13 ::: 34 these submissions, Mr.Mendadkar, relied upon the following decisions:-
(1) State of Andhra Pradesh & Others V/s.Nagam Chandrasekhara Lingam & Others, (1988) 3 SCC 534, to contend that the Scrutiny Committee, Pune, while passing the order dated May 22, 1987 as also the Scrutiny Committee, Thane while making the report dated February 1, 2010 conducted enquiry behind his back and the said proceedings would be vitiated by non compliance with natural justice principles.
(2) Ramesh Kishan More V/s.State of Maharashtra & Others, 1996 (1) Mh.L.J. 175, to contend that against the order dated May 22, 1987 passed by the Scrutiny Committee, Pune, the Respondent No.11 had a remedy of appeal in terms of G.R.dated March 8, 1985.
However, the powers of the Appellate Authority were withdrawn and therefore, he has challenged the said order by invoking Article 226 of the Constitution of India.
(3) R.S.Saini V/s.State of Punjab & Others, (1999) 8 SCC 90, to contend that there is no evidence to reasonably support the finding of the Scrutiny Committee, Pune and the Scrutiny Committee, Thane that the Respondent No.11 does not belong to the Mahadeo Koli, a scheduled tribe.
29.In the light of the submissions made by the learned counsel ::: Downloaded on - 09/06/2013 15:54:13 ::: 35 appearing for the respective parties, we have perused the record that was made available on behalf of the Respondent Nos.1 to 3 and 5 to 10 and the Respondent No.4- P.C.M.C.
30.In order to consider the challenge made by Respondent No.11 to the order dated May 22, 1987 passed by the Scrutiny Committee, Pune, we have gone through the record of the said Committee. The Respondent No.11 obtained caste certificate dated June 24, 1985.
The said certificate records that the Respondent No.11 and his family ordinarily reside at Lonawala, Taluka Maval, District Pune. Perusal of the said record indicates that the Respondent No.11 made an application on September 27, 1986 to the Research Officer of the Scrutiny Committee, Pune. In that application, he had mentioned his address as under:
"Bara Bangala Road, Patryachi Chawl, Marimata Mal, Room No.B-10, Lonawala 410 401".
In respect of the father's education, he mentioned as "7th Standard".
In respect of Clause No.13 (a), (b), (c) relating to the mother tongue, dialect and goddess, he mentioned as Mother tongue-Marathi, dialect-Marathi and Goddess-Khandoba. Against Clause No.14 pertaining to applicant's place of ordinary residence, he furnished the information that he hails from Osewadi, Mudhavi, Tal.Mangalvedha, District:Solapur. He further furnished the information to the effect ::: Downloaded on - 09/06/2013 15:54:13 ::: 36 that at that place they have three acres of land. He did not furnish the documents set out in clause 19 and in particular primary & secondary school leaving certificates of the applicant's father.
31.By communication dated October 13, 1986 of the Research Officer of the Scrutiny Committee, Pune addressed to the Respondent No.11 at the address "Bara Bangala Road, Patryachi Chawl, Marimata Mal, Room No.B-10, Lonawala 410401, District:Pune, he was called upon to furnish his original Primary School Leaving Certificate as also original Secondary School Leaving Certificate, original of the father's Primary School Leaving Certificate as also the original Secondary School Leaving Certificate. By subsequent communication dated October 21, 1986 addressed to the Respondent No.11 at the same address, he was called upon the attend the interview alongwith his guardian at the office of the Scrutiny Committee, Pune on November 7, 1986. He was called upon to produce documents, such as Primary School Leaving Certificate of Respondent No.11, father's Primary School Leaving Certificate of Respondent No.11, among other documents. At the time of interview on November 7, 1986, the Respondent No.11 was given questionaire which had been filled in by him. In that questionaire, against clause No.4 about the place of original residence, the Respondent No.11 has claimed the original place of residence as Mudhavi, Taluka Mangalvedha, District Solapur ::: Downloaded on - 09/06/2013 15:54:13 ::: 37 and there they have three acres of land. He had also given particulars of traits and characteristics. The father of the Respondent No.11 also gave written say on November 7, 1986 wherein he assured that within 15 days he will produce his Primary School Leaving Certificate as also his elder brother's School Leaving Certificate. He further assured that he will produce the relevant extract of register recording admission of the Respondent No.11 in the Primary School at Igatpuri within 15 days. He also assured that he will produce his birth certificate within 15 days to the Committee. He further set out therein the festivals observed by their community and that his relatives are from Pandharpur, District Solapur only. It appears that District Kolhapur is wrongly mentioned.
32.The Director of Scrutiny Committee, Pune addressed a communication dated November 26, 1986 to the Respondent No.11 recording that the Respondent No.11 did not produce the Primary School Leaving Certificate of his father and Uncle at the time of interview held on November 7, 1986. The Respondent No.11 was called upon to submit these documents within 15 days from the receipt of this communication. Once again this communication was addressed to the Respondent No.11 at the above extracted address.
33.The father of the Respondent No.11 addressed a letter dated December 9, 1986 to the Director of the Scrutiny Committee, Pune ::: Downloaded on - 09/06/2013 15:54:13 ::: 38 setting out therein that though he demanded the documents sought by the Committee viz.his and his brothers Primary School Leaving Certificates, the Headmaster of the concerned School informed him that on account of Panshet flood of 1961 in Pune the said record is destroyed. Alongwith the said letter he also annexed the letter dated December 4, 1986 addressed by the Headmaster of the concerned School.
34.It is in these circumstances, the Director of the Scrutiny Committee, Pune addressed a letter dated January 19, 1987 to the Headmaster of the Municipal Primary School No.15, deputing Mr.R.G.Mandve, Cultural Officer to collect the Primary School Leaving Certificates of the father & uncle of the Respondent No.11. Pursuant to that, the Headmaster of the Primary School issued School Leaving Certificate on January 19, 1987. Perusal of the School Leaving Certificate indicates that the caste of the uncle of the Respondent No.11 was recorded as Hindu Koli. Similarly, caste of the father of the Respondent No.11 was recorded as Hindu Koli.
35.The Scrutiny Committee, Pune after considering the documents produced on record, replies given by the Respondent No.11 to the questionaire, as also the written say filed by the father of the Respondent No.11, and on the basis of the personal hearing observed that the Respondent No.11 had not furnished basic documents such ::: Downloaded on - 09/06/2013 15:54:13 ::: 39 as extract of birth, extract of Primary School admission in respect of himself and his father, from which the caste claim should have been verified by the Committee. The Scrutiny Committee, Pune therefore conducted enquiry with the Primary School of the Respondent No. 11's father where he took his early education. In response to the query by the Scrutiny Committee, Pune, the Headmaster B.A.Barane Vidyalay for Boys School No.15, Pune issued certificates under Outward No.316 dated January 19, 1987, Register No.1321 of the Pupil Book No.4 issued in favour of father of Respondent No.11 and Outward No.315 dated January 19, 1987, Register No.1296 of the Pupil Book No.4 issued in favour of uncle of the Respondent No.11.
In both certificates, the caste of the concerned was recorded as Hindu Koli.
36.On the basis of the documents before the Scrutiny Committee, Pune, by a well reasoned order, the Scrutiny Committee, Pune recorded that the Respondent No.11 could not establish his claim towards Mahadeo Koli, a scheduled tribe. Eventually, the Scrutiny Committee, Pune cancelled and confiscated the original caste certificate dated June 24, 1985 issued by the Tahasildar, Pune.
37.While assailing the order dated May 22, 1987 Mr.Mendadkar submitted that in the first place, the said order passed by the Scrutiny Committee, Pune, was never served upon him. Secondly, the ::: Downloaded on - 09/06/2013 15:54:13 ::: 40 Respondent No.11 acquired the knowledge of the said order only when it was annexed to Writ Petition No.7740 of 2008. On merits, he submitted that during the course of interview before the Scrutiny Committee, Pune, the questions relating to the tribal traits, characteristics and customs were asked by Dr.Gare, the Chairman of the Scrutiny Committee, Pune in English. The father of the Respondent No.11 informed that he does not know English. Though some of the questions were asked in Marathi, they were recorded in English. He further submitted that the Scrutiny Committee, Pune, obtained the documents from the Headmaster of D.A.Barne Vidyalaya Boys School, Pune, in respect of father and uncle of the Respondent No.11. The copy of these documents were, however, not furnished to the Respondent No.11 or his father. This has resulted into violation of principles of natural justice. It was submitted that though the statement of father of the Respondent No.11 was recorded on the point of affinity test, copy thereof was not furnished therein. On these ground, he assailed the order dated May 22, 1987, passed by the Scrutiny Committee, Pune.
38.We do not find any substance in any of the contentions raised by Mr.Mendadkar. It is relevant to note that the Scrutiny Committee, Pune, repeatedly called upon the Respondent No.11 to produce to the original primary school leaving certificate as also original secondary ::: Downloaded on - 09/06/2013 15:54:13 ::: 41 school leaving certificates of his father and uncle. These communications are dated October 13, 1986 and October 21, 1986.
After the interview of November 7, 1986, the father of the Respondent No.11 assured the Committee that he would submit these documents within 15 days. Since there was no compliance on the part of the Respondent No.11, by communication dated November 26, 1986, the Director of the Scrutiny Committee called upon the Respondent No.11 to produce these documents within 15 days from the receipt of that communication. However, the father of the Respondent No.11 came out with the case that these documents are destroyed on account of Panshet Flood in 1961. It is only thereafter the Director of the Scrutiny Committee, Pune, addressed a letter dated January 19, 1987 to the Headmaster of the school and deputed Mr.R.G.Mandve, Cultural Officer to collect these documents. These documents were furnished to them falsifying the claim of the Respondent No.11 that these documents were destroyed in the flood of 1961.
39.The grievance of the Respondent No.11 that the Scrutiny Committee, Pune, did not make available these documents to him or his father is totally unsustainable. These documents were within the knowledge of the Respondent No.11. Though the father of the Respondent No.11 assured the Scrutiny Committee, Pune to submit these documents ::: Downloaded on - 09/06/2013 15:54:13 ::: 42 within 15 days, he not only failed to submit these documents as assured, but, even went to the extent of contending that these documents were destroyed in Panshet flood of 1961. It is not even the case of the Respondent No.11 that these documents do not pertain to his father and uncle or that these documents are not genuine. We, therefore, do not find any substance in the contentions raised on behalf of the Respondent No.11 that there is violation of principles of the natural justice while deciding the claim of the Respondent No.11 by the Scrutiny Committee, Pune.
40.The Respondent No.11 further contended that at the time of interview the father of respondent was asked questions relating to the tribal traits, characteristics and customs in English. His father does not understand English. Though some of the questions were asked in Marathi, they were recorded in English. We have perused the record of the Scrutiny Committee, Pune. Perusal of the record, and in particular, the written say submitted by the father of the Respondent No.11 on November 7, 1986 indicates that the same is in Marathi and is signed by the Respondent No.11 as also by his father. It is, therefore, incorrect to contend that the questions were asked in English.
41.On merits, we are more than satisfied that the Scrutiny Committee, Pune, rightly negatived the claim of the Respondent No.11 that he ::: Downloaded on - 09/06/2013 15:54:13 ::: 43 belongs to Mahadeo Koli, a Scheduled Tribe. In paragraph no.3 of the order, the Scrutiny Committee, after considering the school leaving certificate of the father and uncle of the Respondent No.11, came to the conclusion that the caste of these persons was recorded as Hindu Koli. Naturally, the Caste of the Respondent No.11 is Koli.
The Scrutiny Committee in paragraph 7 considered the characteristics and traits of scheduled tribe and the answers given by the father of the Respondent No.11 and came to the conclusion that the traditions set out by the father of the Respondent Mo.11 are common and popular among `Son Kolis' and `Fisherman Koli'. He further admitted in his statement that he does not know anything about Mahadeo Koli and their tradition, culture and customs. On the basis of the basic documents as also the personal interview of the father of the Respondent No.11, Scrutiny Committee concluded that the Respondent No.11 does not belong to Mahadeo Koli, a scheduled tribe. After going through the record of the Scrutiny Committee, Pune, we are in complete agreement with the reasons and conclusions drawn by the Scrutiny Committee, Pune.
42.It is relevant to note that the copy of the order dated May 22, 1987 was forwarded to the Respondent No.11 at the same address extracted hereinabove with further intimation that if he is aggrieved by the decision of the Scrutiny Committee, he has a remedy of ::: Downloaded on - 09/06/2013 15:54:13 ::: 44 preferring an appeal within 15 days from the date of receipt of the decision, before the appellate authority- Additional Commissioner for Tribal Development, Nashik. The copy of the order was also forwarded to the Tahasildar, Pune and the Collector & District Magistrate, Pune for information and necessary action.
43.By communication dated June 24, 1987 the Collector, Pune intimated to the Tahasildar, Pune that the Scrutiny Committee, Pune cancelled the caste certificate dated June 24, 1985 issued to the Respondent No.11. He therefore called upon the Tahasildar, Pune to declare that the said certificate is cancelled. The Tahasildar, Pune was further directed to bring this fact to the notice of the concerned officers wherever the Respondent No.11 had taken benefits on the basis of the said certificate. The Tahasildar, Pune was further directed to prosecute the Respondent No.11 under the provisions of the Indian Penal Code for obtaining certificate by furnishing false information.
The Collector, Pune also directed the Tahasildar, Pune to intimate the name and the designation of the officer who issued the caste certificate on June 24, 1985 to the Revenue Department for the purpose of conducting departmental enquiry. The Tahasildar, Pune was called upon to submit the compliance report by a returned post.
44.From the record it does not appear that any action pursuant to the letter dated June 24, 1987 was taken. On the other hand, the ::: Downloaded on - 09/06/2013 15:54:13 ::: 45 Respondent No.11 once again approached the Tahasildar, Pune and obtained caste certificate on July 14, 1987. We are surprised with the act of the Tahasildar, Pune in issuing the second caste certificate on July 14, 1987. The Respondent No.11 obviously approached the Tahasildar, Pune for obtaining another caste certificate as the original caste certificate dated June 24, 1985 was confiscated by the Scrutiny Committee, Pune. The timing with which the Respondent No.11 approached Tahasildar, Pune as also his attempt to secure another caste certificate is also eloquent. It is only after his claim was rejected by the Scrutiny Committee, Pune on May 22, 1987, the Respondent No.11 approached the Tahasildar, Pune for issuing the caste certificate. The Tahasildar, Pune did not bother to verify the record and mechanically issued the caste certificate on July 14, 1987. On the strength of that caste certificate, the Respondent No.11 secured the job with the Respondent No.4-P.C.M.C.
45.In our opinion, the Respondent No.11 could not have obtained second caste certificate on July 14, 1987. In the first place, it was expected of the Respondent No.11 to make enquiries with the Scrutiny Committee, Pune as to what happened to his caste claim.
Secondly, he should have disclosed the fact of obtaining first caste certificate on June 24, 1985 to the Tahasildar, Pune. The Respondent No.11 suppressed this material fact from the Tahasildar, Pune.
::: Downloaded on - 09/06/2013 15:54:13 ::: 46Thirdly, the Tahasildar, Pune also mechanically issued the caste certificate to the Respondent No.11. What is surprising to note is that the Respondent No.11 claims that he was not served with the copy of the order of the Scrutiny Committee, Pune dated May 22, 1987. In that circumstances, naturally, he would have produced the copy of caste certificate dated June 24, 1985 before securing the employment with the Respondent No.4-P.C.M.C. However, he chose to obtain another caste certificate on July 14, 1987 and on that basis secured employment with the Respondent No.4 - P.C.M.C. The very fact that the Respondent No.11 approached the Tahasildar, Pune for obraining another caste certificate is indication that he acquired knowledge of the order of the Scrutiny Committee, Pune as also confiscation of his original caste certificate dated June 24, 1985 What is equally shocking is that the original files in respect of the caste certificates dated June 24, 1985, July 14, 1987 and May 19, 1990 maintained by the Tahasildar, Pune are not traceable in the office of the Tahasildar, Pune.
46.We have noted earlier that the order dated May 22, 1987 passed by the Scrutiny Committee, Pune recorded that the copy of the said order was forwarded to the Respondent No.11 at the address mentioned by him in the application itself. On the same address, the Respondent No.11 had received communications dated October 13, ::: Downloaded on - 09/06/2013 15:54:13 ::: 47 1986, October 21, 1986 as also November 26, 1986. In fact, the Respondent No.11 alongwith his father attended the interview on November 7, 1986 pursuant to the communication dated October 21, 1986. Even the communication dated November 26, 1986 was received by the Respondent No.11 and this was replied by father of the Respondent No.11 under letter dated December 4, 1986.
Considering these facts, we are clearly of the opinion that the impugned order dated may 22, 1987 passed by the Scrutiny Committee, Pune was duly served upon the Respondent No.11.
Section 114 of the Indian Evidence Act, 1872 provides that the Court may presume existance of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) thereof provides that the Court may presume that the judicial and official acts have been regularly performed. Illustration (f) thereof provides that the Court may presume that the common course of business has been followed in particular case. But the Court shall also have due regard to such facts as the following, in considering whether such maxim does or does not apply to the particular case before it:- As to illustration (f) -
The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by ::: Downloaded on - 09/06/2013 15:54:13 ::: 48 disturbances. It has not been shown by Respondent No.11 that the usual course of post was interrupted by disturbances. The Respondent No.11 has not made out any case as to whether usual course of post was interrupted by disturbances as provided in illustration (f) of Section 114 of the Evidence Act. The burden was on the Respondent No.11 to establish such fact. It is in these circumstances too late in the day for the Respondent No.11 now to contend that he was not served with the copy of the order dated May 22, 1987. In fact, by the said order, the original caste certificate dated June 24, 1985 was confiscated. It is precisely for this reason that the Respondent No.11 again approached the Tahasildar, Pune and secured second caste certificate on July 14, 1987. The Respondent No.11, instead of approaching the Tahasildar, Pune ought to have made enquiries with the Scrutiny Committee, Pune as to the outcome of the verification of his caste claim, assuming that he was not served with the copy of the said order. The very fact that the Respondent No.11 approached the Tahasildar, Pune for obtaining caste certificate which was issued on July 14, 1987 clearly establishes that since the Respondent No.11 acquired knowledge about the order dated May 22, 1987 he approached the Tahasildar, Pune with a request to issue the caste certificate. We therefore reject the contention of the Respondent No.11 that he was not served with the order of the ::: Downloaded on - 09/06/2013 15:54:13 ::: 49 Scrutiny Committee, Pune dated May 22, 1987. Though some of the issues including service of the order dated May 22, 1987 on the Respondent No.11 were concluded by order dated December 2, 2009 passed by this Court, we have considered the arguments of the parties independently in the light of the record that was made available to us.
47.As observed earlier, the Respondent No.11 secured job as a Sanitary Inspector with the Respondent No.4- P.C.M.C. on the strength of the caste certificate dated July 14, 1987. The Respondent No.4- P.C.M.C. did not call upon the Respondent No.11 to get his claim verified by the concerned Scrutiny Committee. In fact, after the Government Resolution dated of 1998 it was obligatory on the part of the Respondent No.4- P.C.M.C. to call upon the Respondent No.11 to get his claim verified. Even after 1998, the Respondent No.4- P.C.M.C. did not call upon the Respondent N.11 to get his claim verified. It is only in the year 2003 when the question of promotion to the post of Chief Sanitary Inspector arose, the Respondent No.4 - P.C.M.C. called upon the Respondent No.11 to get his claim verified. The Respondent No.11 did not want to approach the Scrutiny Committee, Pune as his claim was already turned down by the order dated May 22, 1987. He also did not approach the Scrutiny Committee, Pune for obtaining the validity in respect of the certificate dated July 14, 1987, ::: Downloaded on - 09/06/2013 15:54:14 ::: 50 as also May 19, 1990 as already his claim was turned down. The Respondent No.11 chose a novel method. He approached S.D.O. Shrirampur for obtaining the 4th caste certificate by representing that his ordinary place of residence is Ahmednagar District. The S.D.O. Shrirampur handed over the matter to the Tahasildar, Rahuri for verification of his claim. On the basis of the report of the Tahasildar, Rahuri, the S.D.O. Shrirampur issued caste certificate on November 15, 2003. We have already indicated that on the earlier occasions the Respondent No.11 while obtaining the caste certificate dated June 24, 1985, July 14, 1987 and May 19, 1990 claimed that his ordinary place of residence is Pune district. All these facts were suppressed by the Respondent No.11 before approaching the S.D.O. Shrirampur. It is also relevant to note at this stage that the Respondent No.11 or his father does not hold any property in Ahmednagar. In the adjudication of the show cause notice dated August 25, 2009 by the Scrutiny Committee, Thane the Respondent No.11 furnished information to the effect that they are holding two gunthas of agricultural land at Rahuri. He however failed to produce any documentary evidence to substantiate the said claim. During the course of hearing of these petitions, we repeatedly called upon Mr.Mendadkar to substantiate the said claim by producing the documentary evidence on record. However, he could not substantiate ::: Downloaded on - 09/06/2013 15:54:14 ::: 51 the said claim. We are therefore more than satisfied that the Respondent No.11 does not originally belong to Ahmednagar District.
If that be so, the S.D.O. Shrirampur had no authority to issue caste certificate dated November 15, 2003.
48.After obtaining caste certificate dated November 15, 2003 issued by S.D.O. Shrirampur, the Respondent No.11 made application dated December 2, 2003 under Rule 11 (e) of the Rules. We have already held that the S.D.O. Shrirampur had no jurisdiction to issue caste certificate dated November 15, 2003. Obviously the Scrutiny Committee, Nashik will have no jurisdiction to entertain the claim of the Respondent No.11. Assuming the Scrutiny Committee, Nashik has jurisdiction to entertain the claim of the Respondent No.11 we have examined the case of the Respondent No.11 on merits. In the said application, the Respondent No.11 claimed that he is originally the resident of Kolewadi, Taluka: Rahuri, District: Ahmednagar. He also set out that he has residential house as well as land at Kolewadi. In so far as educational qualification of the father of the Respondent No.11 is concerned, he disclosed that he is illiterate. He also furnished the information to the effect that on the basis of caste certificates as also the School Leaving Certificates of father, uncle and cousins, he obtained caste certificate from the competent authority viz.S.D.O. Shrirampur. In respect of the information as to whether the caste ::: Downloaded on - 09/06/2013 15:54:14 ::: 52 claim of paternal side of Respondent No.11 was validated or invalidated, he did not fill-in the said column. On the said application, the father of the Respondent No.11 put his thumb impression. In support of this application, the Respondent No.11 submitted an affidavit made by him on October 16, 2003 setting out the genealogy therein as also relied upon the 7/12 extracts. The Scrutiny Committee, Nashik upheld his claim by order dated December 12, 2003 and issued certificate of validity dated January 1, 2004. Considering the background of the case, in our opinion, the Respondent No.11 suppressed the material facts in the application dated December 2, 2003. He did not disclose that his earlier caste claim was invalidated by the Scrutiny Committee, Pune. He also suppressed that on the earlier occasions certificates dated June 24, 1985, July 14, 1987 and May 19, 1990 were issued by Tahasildar, Pune. He also suppressed that at the time of obtaining those certificates, he claimed to be ordinary resident of Pune district. The Scrutiny Committee, Nashik, within 10 days from the receipt of the application upheld the claim of the Respondent No.11. The Scrutiny Committee, Nashik did not refer the case of the Respondent No.11 to the Vigilance Cell for School and Home enquiry.
49.Mr.Anand Limaye, at the relevant time working as Additional Commissioner, Tribal Development, Nashik, made an affidavit dated ::: Downloaded on - 09/06/2013 15:54:14 ::: 53 April 6, 2010. In the affidavit it was set out by him that the Scrutiny Committee adopted the practice to first check whether the place of origin of the applicant falls within the area notified under the Constitution (Scheduled Tribes) Order, 1950 and the Scheduled Caste and Scheduled Tribes Orders (Amendment) Act, 1956. If the place of origin of the applicant is within the notified area, the case is taken up for decision on the basis of the documents. Unless the suspicion arises from some obvious facts or complaints, the decision is taken on the basis of the documents. Cases in which some doubt arises are referred to the Vigilance Cell. In the instance case there were no suspicious circumstances and therefore the case of the Respondent No.11 was not referred to the Vigilance Cell. We are satisfied in the instant case that the Respondent No.11 misled the Scrutiny Committee, Nashik.
He also suppressed the material facts before the Scrutiny Committee, Nashik. We are however surprised with the speed with which the Scrutiny Committee, Nashik decided the case of the Respondent No.
11. It is interesting to note that though the claim of the Respondent No.11 was upheld by order dated December 12, 2003 the actual certificate of validity was issued on January 1, 2004. The time consumed for issuing the certificate of validity is more than the time consumed for deciding the claim of the Respondent No.11. What is more shocking is that the original record as also the original order ::: Downloaded on - 09/06/2013 15:54:14 ::: 54 dated December 12, 2003 is not traceable in the office of the Scrutiny Committee, Nashik.
50.As observed earlier, Ms. Jija Sampatrao Sane, the Senior Research Officer, made an affidavit on June 29, 2009 upon perusing the official record pertaining to the subject matter of the case and on the basis of information derived therefrom. In a nutshell it is averred therein that the Respondent No.11 fraudulently obtained the certificate of validity from the Scrutiny Committee, Nashik, as also by suppressing the material facts. It was therefore, contended that the certificate of validity obtained by the Respondent No.11 is liable to be cancelled and confiscated in the interest of genuine tribes. Despite this affidavit being on record and being filed earlier in point of time, Ms.Surekha Arvind Shewale, Deputy Director (Research) of the Scrutiny Committee, Nashik made an affidavit on August 14, 2009. The sum and substance of this affidavit is that the Scrutiny Committee, Nashik was satisfied about the genuineness of the tribe claim of the Respondent No.11 as per Rules 12 of the Rules. The certificate of validity dated January 1, 2004 of the Respondent No.11 was issued after following the due procedure. Comparison of these two affidavits leads to irresistible conclusion that Ms.Shewale did not bother to go through the earlier affidavit made by Ms.Jija S.Sane. These two affidavits are diametrically opposite. Whereas Ms.Jija Sane contended ::: Downloaded on - 09/06/2013 15:54:14 ::: 55 that the Respondent No.11 fraudulently obtained the certificate of validity dated January 1, 2004, Ms.Shewale contended that the certificate of validity was issued after following the due procedure.
We are more than satisfied that the affidavit made by Ms.Shewale was with a view to obliging the Respondent No.11 in the present case. Considering the affidavits of Ms.Sane and Ms.Shewale we are prima-facie satisfied that the record was deliberately misplaced by somebody working in the Scrutiny Committee, Nashik in connivance with the Respondent No.11 only after the order of this Court dated July 27, 2009.
51.In the application dated December 2, 2003 Respondent No.11 mentioned that his father is illiterate and the father of the Respondent No.11 put thumb impression on the said application.
However, when the Respondent No.11 made application dated September 13, 1986 before the Scrutiny Committee, Pune, in that application, he disclosed that his father is educated upto 7th Standard. The said application was duly signed by the father of the Respondent No.11. Not only that, the father of the Respondent No. 11 submitted written say duly signed by him on November 7, 1986, when he was called for interview,. Though the Respondent No.11 and his father were repeatedly called upon by the Scrutiny Committee, Pune to submit the basic documents such as Primary ::: Downloaded on - 09/06/2013 15:54:14 ::: 56 School Leaving Certificates of the father and uncle of the Respondent No.11, despite assuring the Scrutiny Committee, Pune to submit these documents within 15 days, these documents were not produced before the Scrutiny Committee, Pune. On the other hand, an attempt was made to the effect that on account of Panshet flood of 1961, the School record was destroyed. Despite that, the Scrutiny Committee, Pune deputed their officer, who secured Primary School Leaving Certificates of the father and uncle of the Respondent No.11, wherein their caste was shown as Koli. In order to avoid production of these documents before the Scrutiny Committee, Nashik, the Respondent No.11 chose the easiest way. He described his father illiterate so that he was not required to produce his father's school record. Here again the Respondent No.11 misled the Scrutiny Committee, Nashik. The Respondent No.11, though furnished that he has residential house as well as land at Rahuri, he could not substantiate the same. Even the 7/12 extract produced alongwith the application does not indicate that his father holds any land. The Respondent No.11 also enclosed affidavit dated October 16, 2003 wherein he furnished genealogy. In that he claimed that he is relative of one Bhima Nana Kamble as also Genu Nana Kamble. We will come to this aspect when we will consider the adjudication of the show cause notice made by the Scrutiny Committee, Thane. Suffice it to say at this juncture is that ::: Downloaded on - 09/06/2013 15:54:14 ::: 57 the Respondent No.11 misled the Scrutiny Committee, Nashik in that regard as well.
52.The Respondent No.11 also did not disclose in the application dated December 2, 2003 the fact of his claim being invalidated by the Scrutiny Committee, Pune. In fact, the Scrutiny Committee, Nashik should not have entertained the claim of Respondent No.11 having regard to the information furnished by him against clause 9(c) wherein the place of residence of Respondent No.11 as on September 6, 1950 was mentioned as Pune. Had the Scrutiny Committee, Nashik considered the information furnished by the Respondent No. 11 in the application carefully, it would not have entertained the application of the Respondent No.11. Since the original file as also the order dated December 12, 2003 passed by the Scrutiny Committee, Nashik are missing, we are handicapped in considering these proceedings. However, considering the fact that the claim of the Respondent No.11 was properly considered by the Scrutiny Committee, Pune we have no hesitation to hold that the entire proceedings before the Scrutiny Committee, Nashik are vitiated by fraud practiced by Respondent No.11. We have no hesitation in setting aside the certificate of validity dated January 1, 2004 issued by the Scrutiny Committee, Nashik.
53.In so far as adjudication of the show cause notice dated August 25, ::: Downloaded on - 09/06/2013 15:54:14 ::: 58 2009 made by the Scrutiny Committee, Thane, is concerned, Mr.Mendadkar strenuously submitted that the said Committee acted beyond its jurisdiction and with pre-conceived motion. The three members of the said Committee acted as a Judge as also discharged their duties as Enquiry Officer. There was violation of the principles of the natural justice and fairplay in recording the statement of one Bhima Nana Kamble at 9.30 p.m on January 9, 2010 at village Kolewadi, Taluka Rahuri, District Ahmednagar. The statement of the said Bhima was recorded under duress and the contents thereof were not read over to him and he was forced to put up his thumb impression. The said Bhima was not identified by any person.
Identical contentions were raised in respect of recording of the statement of one Genu Nana Kamble at 10 p.m on January 9, 2010.
In respect of recording the statements of sarvashree - Shankar Malhari Korde, Deputy Sarpanch of village Kolewadi, Digambar Pandurang Kamble and Baban Hari Rokade it was submitted that since two members of the Committee recorded their statements, they acted as Enquiry Officers and therefore should not have participated in the adjudication of the show cause notice. These two members assumed role of prosecutors as well as a Judge.
54.Mr.Mendadkar also submitted that the documents at Exhibits 7/1, 7/3, 8, 9, 10, 10/2 and 11 before the Scrutiny Committee, Thane ::: Downloaded on - 09/06/2013 15:54:14 ::: 59 were not made available to the Respondent No.11 before making of the Report dated February 1, 2010. The Respondent No.11 could not deal with these documents and therefore the report is in gross violation of the principles of the natural justice. On behalf of Respondent No.11 objections were taken to the said report. We have already held that the entire proceedings before the Scrutiny Committee, Nashik were vitiated by practicing fraud by Respondent No.11 right from the stage of obtaining the caste certificate dated November 15, 2003 from the S.D.O. Shrirampur. The Scrutiny Committee, Nashik also did not have jurisdiction to entertain the claim of Respondent No.11. Despite that we have examined arguments advanced by Mr.Mendadkar in respect of the adjudication of the show cause notice dated August 25, 2009 made by the Scrutiny Committee, Thane. The Scrutiny Committee considered the statements of various officials as also the statements made by the Respondent No.11. The Respondent No.11 claimed that one Bhima Nana Kamble is his uncle. The Respondent No.11 also did not know that Rahuri is not a village but a Taluka place. He also did not know that Taluka Rahuri is a part of Ahmednagar District. However, in the statement recorded on December 16, 2009 he mentioned his place of origin as At/Post Rahuri, Taluka Ahmednagar, District Nashik. It is common knowledge that Ahmednagar is not a Taluka place but is a ::: Downloaded on - 09/06/2013 15:54:14 ::: 60 District place. The Scrutiny Committee, Thane also recorded that the Respondent No.11 failed to submit any documentary evidence in respect of two gunthas of land situate at Rahuri. Since the Respondent No.11 claimed to be relative of Bhima Nana Kamble, the Committee recorded the statement of said Bhima, who refused relationship with the Respondent No.11. We have gone through the statement of said Bhima which is at Exh.7/1. The said statement was read over and explained to him in Marathi in the presence of the Research Officer and thereafter he put his signature. Same is the case with the statement of Genu Nana Kamble at Exh.7/2. Both these persons not only refused relationship with the Respondent No.11, but they also stated that the father of the Respondent No.11 never resided at Kolewadi. None of their relatives ever left Kolewadi. The genealogy furnished by Bhima and Genu before the Deputy Director and the Research Officer of the Scrutiny Committee, Thane and duly signed by them, also does not tally with the genealogy furnished by the Respondent No.11 in the affidavit dated October 16, 2003 that was enclosed in support of the application dated December 2, 2003.
We do not find any substance in the objections raised by Mr.Mendadkar as regards the violation of principles of natural justice by the Scrutiny Committee, Thane. It cannot be said that the members of the Scrutiny Committee, Thane acted as Enquiry Officer ::: Downloaded on - 09/06/2013 15:54:14 ::: 61 or for that matter acted as the Prosecutor as also a Judge. On the contrary, they have established the falsehood of the Respondent No. 11 in respect of the information furnished in the application dated December 2, 2003. At every stage, the Respondent No.11, either misled the authorities by furnishing false information or by suppressing the material facts. He has also practiced fraud upon the concerned authorities after his claim was turned down by the Scrutiny Committee, Pune including the Respondent No.4 - P.C.M.C. in securing the employment. Our conclusions are also fortified by the judgments of the Apex Court and of this Court in the following cases:
(1) A.V. Papayya Sastri (supra)
(2) Union of India & Others (supra)
(3) Additional General Manager, Human Resource, BHEL
Ltd. (supra)
(4) S.P.Chengalvaraya Naidu (supra)
(5) The State of Maharashtra (supra)
(6) Bank of India (supra)
(7) R.Vishwanatha Pillai (supra)
(8) Regional Manager, Central Bank of India (supra).
55.During the course of hearing, we have come across many unsavoury incidents. In the first place, the record pertaining to the caste certificates dated June 24, 1985, July 14, 1987 and May 19, 1990 ::: Downloaded on - 09/06/2013 15:54:14 ::: 62 maintained by the Tahasildar, Pune is missing. It is therefore necessary to direct the State Government to hold departmental enquiry against the concerned Tahasildar, Vadgaon Maval, District, Pune who issued the caste certificates on June 24, 1985, July 14, 1987 and May 19, 1990. It is further necessary to direct the State Government to lodge F.I.R. in respect of the missing of the files pertaining to these caste certificates. It has also come on record that the Tahasildar, Rahuri verified the claim of the Respondent No.11 that he originally belongs to Ahmednagar District. On the basis of this verification, the S.D.O. Shrirampur in turn issued the caste certificate dated November 15, 2003. The original record pertaining to the caste certificate dated November 15, 2003 is also missing. It is therefore necessary to direct the State Government to hold departmental enquiry against the concerned Tahasildar, Rahuri as also against Shri.K.M.Gavate and Ms.Pushpa Tarote working in the office of the Tahsildar, Rahuri for not properly verifying the claim of the Respondent No.11 that he originally belongs to Ahmednagar District. It is further necessary to direct the State Government to hold departmental enquiry against the concerned S.D.O. Shrirampur for issuing the caste certificate dated November 15, 2003. The State Government is also directed to lodge the F.I.R. Against the concerned Staff working in the office of the S.D.O. Shrirampur in respect of ::: Downloaded on - 09/06/2013 15:54:14 ::: 63 missing of the original record.
56.It has also come on record that the file as well as the order dated December 12, 2003 passed by the Scrutiny Committee, Nashik is missing. It is necessary to direct the State Government to hold departmental enquiry against the concerned Staff working in the office of the Scrutiny Committee, Nashik who are responsible for missing of the original record. We deprecate the conduct of Ms.Surekha Arvind Shewale, Deputy Director (Research) of the Scrutiny Committee, Nashik for making affidavit without verifying the record. We expect that in future Ms.Surekha Arvind Shewale will be more vigilant and careful in making the affidavits. The State Government is directed to submit the compliance report within six months from today.
57.We have already directed the Scrutiny Committee, Nashik to lodge the F.I.R with the Sarkarwada Police Station, Nashik. We direct all these authorities to submit the compliance report after six months before this Court.
58.Mr. Gangal requested us to lay down certain guidelines so that in future, the caste certificates issuing authorities as also the Scrutiny Committees in the State of Maharashtra can effectively deal with these aspects of issuance of caste certificates as also verification of the certificates. In view of this, we propose to issue following ::: Downloaded on - 09/06/2013 15:54:14 ::: 64 directions/guidelines:
(1) The Caste Certificate issuing authorities shall verify the genuineness of the claim made by the applicant about his place of ordinary/original residence. In case the applicant claims that he is having residential and other immovable properties, the said claim shall be verified as far as possible by spot inspection.
The caste certificate issuing authorities may conduct discreet enquiry in that regard. For that purpose, it is necessary to establish separate staff in the office of the caste certificates issuing authorities for scrutinizing the applications submitted together with the documents in support of the claims. The caste certificate issuing authorities must be provided with sufficient infrastructure to process and verify the claims and for that matter the State Government will ensure the compliance of the directions given in Paragraph 41 by the Full Bench of this Court in the case of Shilpa Thakur (supra).
(2) The caste certificates issuing authorities must be suitably trained for analysing the applications and the documents in accordance with the provisions of the Act and the Rules. The training programme must be regular annual process at every division level.
(3) The State Government may endeavor to constitute the ::: Downloaded on - 09/06/2013 15:54:14 ::: 65 Scrutiny Committees district-wise instead of region-wise, so that the heavy burden on the regional Caste Scrutiny Committees will be reduced substantially and the district-wise Caste Scrutiny Committees will be in a position to effectively verify the claim of the applicants.
(4) The caste certificates issuing authorities shall maintain appropriate maintenance of the registers of the inward, scrutiny, decision and outward, of which there should be an acknowledgement of the applicant or his representative. In case the decision of the Scrutiny Committee is not collected personally, the decision should be sent by Registered Post A.D. The system of maintaining record must be properly created by making a programme for the same.
(5) There should be separate record room in which (a) cases received, (b) cases decided together with decision thereon, (c) cases pending etc. be retained under the supervision and the control of the head of the office and/or other senior officer of the Committee.
(6) The State Government is directed to ensure that for the purpose of maintaining the record of certificates issuing authorities as also Scrutiny Committees, the Record Rooms are made available so that in future there will be no occasion of ::: Downloaded on - 09/06/2013 15:54:14 ::: 66 missing of the record.
(7) As regards the Caste Scrutiny Committee the information in respect of their decisions should be interlinked through Satellite, so that any Committee can view it and all the decisions will be available in the office of the Commissioner and the Chairman of the Caste Scrutiny Committee having his office at Pune.
(8) Wherever the Scrutiny Committee upholds the claim, it should pass a speaking order recording brief reasons therein according to the ratio laid down by the Apex Court in the case of Kumari Madhuri Patil and Anr. V/s. Additional Commissioner, Tribal Development, AIR 1995 SC 94 and the Full Bench decision of this Court in the case of Shilpa V/s.State of Maharashtra, 2009 (3) Mh.L.J. 995.
59.In the result, in view of the forgoing discussion, Writ Petition No. 7740 of 2008 succeeds. Rule is made absolute in terms of prayer clause (b) (i) to the extent of cancellation and confiscation of the caste certificates dated June 24, 1985, July 14, 1987, May 19, 1990, November 15, 2003 as also the certificate of validity dated January 1, 2004. It is declared that the Respondent No.11, Prithviraj Vasant Kamble does not belong to Mahadeo Koli, a Scheduled Tribe and is liable for prosecution in accordance with law. The Municipal ::: Downloaded on - 09/06/2013 15:54:14 ::: 67 Corporation of the City of Pimpri-Chinchwad is directed to take appropriate action within four weeks in respect of appointment as also the promotion of Prithviraj Vasant Kamble. It is further necessary to direct the P.C.M.C. to consider the case of the petitioner for promotion to the resultant vacant post of Chief Sanitary Inspector in accordance with law. Rule is made absolute accordingly. In the circumstances of the case, there will be no order as to costs.
60.In so far as Writ Petition No.8696 of 2009 is concerned, for the forgoing reasons, we are clearly of the opinion that no case is made out for invocation of extra ordinary powers under Article 226 of the Constitution of India. The petition being devoid of substance, deserves to be dismissed. Rule is discharged. In the circumstances of the case, there will be no order as to costs.
61.At this stage, Mr.Mendadkar, learned counsel appearing for petitioner in Writ Petition No.8696 of 2009, prays for stay of this order for some time. Mr.Gangal who is appearing for the Caste Scrutiny Committee vehemently submits that since it is a case of fraud and the petitioner has taken advantage of it, interim relief is not required to be granted.
However, learned counsel appearing for the petitioner states that the petitioner would like to take the matter further before the Hon'ble Supreme Court. Therefore, we deem it fit to stay this order for a period of three weeks from today.
::: Downloaded on - 09/06/2013 15:54:14 ::: 6862.Place the Writ Petitions on board after six months for reporting compliance of this order.
(R.G.KETKAR, J.) (P.B.MAJMUDAR, J.)
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