Bombay High Court
Smt. Sampada Prashant Hiray vs The State Of Maharashtra Thr Secretary ... on 6 August, 2024
Author: Nitin Jamdar
Bench: Nitin Jamdar, M.M. Sathaye
2024:BHC-AS:31841-DB
JPP 1 4. WP 12977.2023 - 06.08. Judt.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12977 OF 2023
Smt. Sampada Prashant Hiray )
Age: 39 yrs, Occp. Businesswoman )
Residing at Madhur Murli, )
Plot No. 6, Satya Colony, )
Tryambak Road, Nashik Industrial )
Estate, Nashik - 422007 ) ... Petitioner
Versus
1. The State of Maharashtra )
Education and Social Welfare )
Department, Through Secretary )
2. The Sub-Divisional Officer, )
Malegaon Taluka, )
Near Malegaon Bus Stand, )
Malegaon, Nashik- 423203 ) ... Respondents
Ms. Anjali Helekar for the Petitioner.
Mr. S.H. Kankal, AGP for the Respondent Nos.1 & 2 - State.
CORAM: NITIN JAMDAR &
M.M. SATHAYE, JJ.
DATE: 06 AUGUST 2024 Oral Judgment (Per Nitin Jamdar, J.) :-
Rule. Rule made returnable forthwith. The Respondents waive service. Taken up for disposal.::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 :::
JPP 2 4. WP 12977.2023 - 06.08. Judt.doc
2. The Petitioner has prayed for the issuance of a Caste Certificate and has also raised a larger issue regarding the non- existence of an Appellate Authority to entertain the appeals against the refusal to issue Caste Certificates.
3. The marriage of the Petitioner was solemnised on 27 June 2004. The child Prithviraj was born out of wedlock on 29 November 2005. The Petitioner and her husband could not reconcile their differences, so the Petitioner filed a Divorce Petition in the Family Court at Nashik. The proceedings were settled, and the Consent Terms were filed in the Family Court.
4. The Petitioner applied for a Caste Certificate for her son Prithviraj as belonging to Kunbi (Other Backward Class) to Respondent No.2 - Sub-Divisional Officer. The application filed by the Petitioner for issuance of a Caste Certificate to her son was rejected by Respondent No.2 by order dated 28 June 2022. Respondent No.2, in the order rejecting the application for a Caste Certificate, stated that the Petitioner had a remedy of Appeal within 30 days to the District Caste Certificate Scrutiny Committee (Scrutiny Committee), Nashik. The Petitioner filed an appeal before the Scrutiny Committee, Nashik, on 12 July 2022. The appeal was disposed of holding that the appeal was not maintainable before the ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 3 4. WP 12977.2023 - 06.08. Judt.doc Scrutiny Committee as it was not notified as an Appellate Authority. Therefore, the Petitioner is before us challenging the orders passed by Respondent No. 2 and the Scrutiny Committee and for a direction to issue a Caste Certificate.
5. We have heard Ms. Anjali Helekar, learned Counsel for the Petitioner and Mr. S.H. Kankal, AGP for the Respondent - State.
6. The issuance of Caste Certificate and its verification in the State of Maharashtra is governed by 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 (the Act of 2000) This Act is to provide for the regulation of the issuance and verification of the Caste Certificates to the persons belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category.
7. Section 2(a) of the Act of 2000 defines Caste Certificate to mean the certificate issued by the Competent Authority to an applicant indicating therein the Scheduled Caste, Scheduled Tribe (Vimukta Jatis), Nomadic Tribe, Other Backward Class, etc., to which such applicant belongs. The Competent Authority under Section 2(b) means an officer or authority authorised by the ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 4 4. WP 12977.2023 - 06.08. Judt.doc Government, by a notification in the Official Gazette, to issue a Caste Certificate. Section 2(h) defines Other Backward Classes to mean Socially and Educationally Backward Classes of citizens as declared by the Government, including Other Backward Classes declared by the Government of India in relation to the State of Maharashtra.
8. Under Section 3 of the Act of 2000, any person belonging to the Scheduled Castes and Scheduled Tribes, De- notified Tribes, Other Backward Classes, etc., who is required to produce a Caste Certificate in order to claim the benefit of any reservation in any public employment or educational institution or any other purposes specified therein can apply to the Competent Authority in the manner as prescribed under Section 4. Section 4 of the Act of 2000 reads thus:-
"4. Caste Certificate to be issued by Competent Authority.
(1) The Competent Authority may, on an application made to it under section 3, after satisfying itself about the genuineness of the claim and following the procedure as prescribed, issue a Caste Certificate within such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing.
(2) A Caste Certificate issued by any person, officer or authority other than the Competent Authority shall be ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 5 4. WP 12977.2023 - 06.08. Judt.doc invalid. The Caste Certificate issued by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the Scrutiny Committee."
Under Section 5 any person aggrieved by an order of rejection of application by the Competent Authority can file an appeal to the Appellate Authority specified by the Government by notification in the Government Gazette. Section 5 reads thus:-
"5. Appeal.
(1). Any person aggrieved by an order of rejection of an application passed by the Competent Authority under sub-section (1) of section 4 may, within 30 days from the date of receipt of the order, appeal to the Appellate Authority specified by the Government by notification in the Official Gazette.
(2) The Appellate Authority may within a period of three months, after giving the appellant an opportunity of being heard and after satisfying itself about the genuineness or otherwise of the claim of the appellant, either confirm the rejection order or set aside the order of the Competent Authority and direct the Competent Authority to issue the caste certificate."
(emphasis supplied)
9. Under the Act of 2000 the State of Maharashtra has framed two sets of Rules. First, the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003, ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 6 4. WP 12977.2023 - 06.08. Judt.doc which is applicable to the members of the Scheduled Tribes. As regards the others, that the Scheduled Castes, De-notified Tribes, Nomadic Tribes, Other Backward Classes, etc., rules have been framed in the year 2012 titled as 'The Maharashtra Scheduled Castes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of ) Caste Certificate Rules, 2012' (the Rules of 2012).
10. Under Rule 2(b) of Rules 2012, the Appellate Authority is defined as an officer or an Authority specified by the Government by Notification under Section 5(1) of the Act of 2000. The conditions of residence for issuance of a Caste Certificate are specified in Rule 3. Rule 4 lays down the procedure for obtaining a Caste Certificate from a Competent Authority. The procedure to be followed by the Competent Authority for the issuance and rejection of a Caste Certificate is provided under Rule 5. Rule 7 deals with the Appellate Authority against the rejection of an application for a Caste Certificate. Rule 7 reads thus:-
"7. Appellate Authority.
(1) If the application for issuance of Caste Certificate is rejected by the Competent Authority, the applicant may prefer an appeal in FORM-11 against the order of rejection to the respective Appellate Authority within a period of thirty days from the date of the rejection order.::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 :::
JPP 7 4. WP 12977.2023 - 06.08. Judt.doc (2) The Appellate Authority shall examine the grounds on which the Appeal is filed and also receive or call for further documents and call for further record of the Competent Authority, if considered necessary, and pass such order within a period of three months as the Appellate Authority may consider fit and proper in the matter.
(3) The Appellate Authority shall pass an order as deemed fit after giving the applicant reasonable opportunity of being heard.
(4) A copy of the order so passed by the Appellate Authority shall be communicated to the applicant and to the concerned Competent Authority with a direction to take action as per the order."
(emphasis supplied) Under Rule 7 the Appeal has to be filed to the Appellate Authority within 30 days of the date of rejection order in Form 11, which is prescribed under the Rules of 2012. Form 11 reads thus:-
"Before Caste Certificate Scrutiny Committee No. ......, Division .... at Appeal No.....
Applicant/Appellant's Name .............
vs. ..... Respondent (Competent Authority who rejected Caste Certificate) Reference: Decision of Competent Authority ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 8 4. WP 12977.2023 - 06.08. Judt.doc Dated:............
Respected Sir, Being aggrieved by the decision of Competent Authority ....... Division ......... dated .......... the Applicant hereby prefer an appeal on the following grounds.
GROUNDS
1)
2)
3) Prayer It is, therefore most respectfully submitted that ..................................................................
..................................................................
Place : Signature of Appellant"
Date :
(emphasis supplied)
This, in short, is the scheme under the Act of 2000 and Rules of 2012 as regards the issuance of Caste Certificates including the Appellate Forum, in respect of the Other Backward Classes (with which the Petition concerns).
11. Since the Petitioner has sought a direction to issue a Caste Certificate, and the Act of 2000 and Rules of 2012 provide for appeal, the question would arise regarding the existence of the same ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 9 4. WP 12977.2023 - 06.08. Judt.doc and entertaining the Writ Petition for availability of the alternate remedy.
12. The Competent Authority, when it rejected the application filed by the Petitioner, had stated in the impugned order that the Petitioner could file an appeal within 30 days to the concerned Scrutiny Committee, which appeal the Petitioner had filed. As seen above, under Section 5(1) read with Rule 7 of the Rules, the Appellate Authority has to be constituted and notified. In the impugned order, the Scrutiny Committee observed that though there is an Appellate Authority under Section 5(1), it refers to a constitution of the authorities/officer as "notified" in the Official Gazette by the State Government. The Scrutiny Committee stated that to date, there is no official notification issued by the State Government constituting an Appellate Authority under Section 5(1) read with Rule 7 of the Rules of 2012.
13. When this Petition came up before us on 27 February 2024, having found that the state of affairs will have consequences beyond the petitioner, we called upon the learned AGP to take instructions on whether the stand taken by the Scrutiny Committee in the impugned order that there is no notification in the Official Gazette is correct and adjourned the Petition to 5 March 2024. On 5 March 2024, the learned AGP, on instructions, informed the Court ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 ::: JPP 10 4. WP 12977.2023 - 06.08. Judt.doc that the notification, as contemplated under Section 5(1) read with Rule 7 in the Official Gazette, has not been issued. We expressed serious concern about the resultant position and called upon the Secretary of Social Justice and Special Assistance Department to take corrective measures. We also directed the Office of the Government Pleader to forward a copy of the order to the Principal Secretary of the Department.
14. The matter was thereafter adjourned from time to time as the Officers of the State did not show any interest. Therefore, at our request, on 21 March 2024, the learned Advocate General, along with the learned Government Pleader, appeared and sought time till 8 April 2024 to take corrective measures. Still no steps were taken. On 24 June 2024, noting earlier orders, including the appearance of the learned Advocate General, we recorded that there was no progress and before a notice was to be issued to the Principal Secretary, we directed the matter to be placed on 2 July 2024 for the learned Advocate General to apprise the position. On 2 July 2024, the learned Advocate General stated that the Appellate Authority would be constituted.
15. Thereafter, when the matter is taken up today, the learned AGP has handed over a Notification issued on 27 July 2024, constituting an Appellate Authority under Section 5(1) of the Act of 2000 as the Additional Collector. The Notification reads thus:-
::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 :::JPP 11 4. WP 12977.2023 - 06.08. Judt.doc "NOTIFICATION 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.
No. CBC-10/2016/C.R. 188/Mavak,- In exercise of the powers conferred by sub-section (1) of section 5 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 (Mah. XXIII of 2001), the Government of Maharashtra hereby specifies the 'Additional Collector' to be the 'Appellate Authority' for the respective areas under their jurisdiction, for adjudicating the Appeal against the order made by the Competent Authority for issuance of Caste Certificate (excluding Scheduled Tribe Certificate), for the purposes of the said Act.
By order and in the name of the Governor of Maharashtra."
27 July 2024 *** Thus the State has now notified the 'Additional Collector' to be the 'Appellate Authority' for the respective areas under their jurisdiction for adjudicating the Appeal against the order made by the Competent Authority for issuance of Caste Certificate (excluding Scheduled Tribe Certificate), for the purposes of the Act of 2000.::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 :::
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16. The Act of 2000 and the Rules of 2012 have been in force for over 10 to 20 years. Form 11, appended to the Rules of 2012, indicate that appeals are to be filed before the Caste Certificate Scrutiny Committee. The Competent Authority even directed the petitioner to file an appeal before this Committee. The Caste Certificate Scrutiny Committee, however, returned the Appeal stating that it has not been notified as an Appellate Authority under Section 5(1) as regards the other Scheduled Castes, Other Backward Classes, Nomadic Tribes, and others covered under the Rules of 2012. Therefore, it is surprising that the Appellate Authority was not duly notified at all for this class under Section 5(1) of the Act of 2000. After the lapse was repeatedly brought to the attention of the State Government and after the learned Advocate General was called upon twice that the State Government finally issued the necessary notification. It is common knowledge that a large number of applications for issuance of Caste Certificates are submitted in the cases of Scheduled Castes, Other Backward Classes, Nomadic Tribes, and others, with many being rejected by the Competent Authority. Without the required notification, such applicants would have been left without a remedy despite the statutory authority being established under the Act and Rules. Despite such a serious lapse no explanation is given in the affidavit for the same. However, now that the Notification has been duly published, we do not wish to comment further.
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17. The Petitioner can approach the Appellate Authority as notified on 27 July 2024 per Section 5(1) of the Act of 2000. If the Petitioner files an appeal within a period of two weeks from today, within a period of six weeks thereafter, the Appellate Authority so constituted will take a decision on the Petitioner's Appeal on its own merits and as per law.
18. Rule is made absolute in the above terms. Writ Petition is disposed of.
M.M. SATHAYE, J. NITIN JAMDAR, J. Digitally signed JYOTI by JYOTI PRAKASH PRAKASH PAWAR PAWAR Date: 2024.08.09 17:52:10 +0530 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 16/08/2024 18:12:23 :::