Gujarat High Court
Ratna Vora vs State Of Gujarat Thro Section Officer & on 17 April, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/12881/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12881 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the
3 NO
fair copy of the judgment ?
Whether this case involves a substantial
question of law as to the interpretation
4 NO
of the constitution of India, 1950 or any
order made thereunder ?
Whether it is to be circulated to the
5 NO
civil judge ?
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RATNA VORA....Petitioner(s)
Versus
STATE OF GUJARAT THRO SECTION OFFICER &
12....Respondent(s)
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Appearance:
MR MHM SHAIKH, ADVOCATE for the Petitioner(s) No. 1
MR RONAK YAGNIK, AGP for the Respondent(s) No. 1
MR MR MK VAKHARIA, ADVOCATE for Respondent(s) No. 3
MR SALIM M SAIYED, ADVOCATE for Respondent(s) No. 6
RULE SERVED for Respondent(s) No.2, 45, 7, 913
RULE SERVED BY DS for the Respondent(s) No. 8
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 17/04/2014
ORAL JUDGMENT
(1) By way of the present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
Page 1 of 39C/SCA/12881/2012 JUDGMENT (A) Admit and allow present petition, (B) Issue a writ of certiorari or any other writ, order or direction quashing and setting aside the order dated 01/12/2010 passed by present respondent No.1 in AaJaPa/10201078156/Ha and order dated 13/09/2010 passed by present respondent No.2 passed in AaJaPa/Ma/1/2010/842426 and further be pleased to quash certificate No.9130/2009 dated 29/03/2009 issued in favour of present respondent No.3;
(C) Declare that present respondent No.3 does not belong to 'Scheduled Caste';
(D) Pending admission, hearing and final disposal of the present petition, debar present respondent No.3 from contesting any election from the constituency reserved for 'Schedule Caste' candidate and also stay implementation of certificate No.9130/2009 dated 29/03/2009 issued in favour of present respondent No.3;
(E) Pass the other and further order/s as deemed fit in the interest of justice."
(2) The facts which can be culled out from the record of the petition are that the petitioner resides at Ahmedabad and was elected as Municipal Councilor from Rakhial Ward for two consecutive terms in 2000 and 2005 and she belongs to Scheduled Caste community i.e. 'Hindu Vanker'. That after India gained independence, the Constitution of India listed some erstwhile groups as Scheduled Castes, which were covered under Article 314 of the Constitution of India and such castes were notified for the first time under the Constitution (Scheduled Caste) Page 2 of 39 C/SCA/12881/2012 JUDGMENT Order, 1950 and that list has been modified/amended/supplemented from time to time. That in order to get benefit of being a member of Scheduled Caste, one has to get a caste certificate, which is a proof of one's belonging to a particular caste. Relying upon the guidelines issued in Circular No.35/1/72 R.U. SCTU (5) dated 02.05.1975 of Government of India, has, inter alia, provided that if a person claims to be member of Scheduled Caste or Scheduled Tribe, his or her parents have to be from that caste only.
(3) It is the case of the petitioner that respondent No.3 is not a member of Scheduled Caste, particularly from "Hindu Vankar", as has been claimed by respondent No.3. That though respondent No.3 does not belong to Scheduled Caste, he has taken undue advantage available to that caste and he has contested and got elected from 74, Sher Kotda Gujarat Legislative Assembly seat in the year 2007 Assembly Election, which is reserved seat for Scheduled Caste candidate only. That by posing himself to be belonging to one of the Scheduled Castes, respondent No.3 contested such election.
Page 3 of 39C/SCA/12881/2012 JUDGMENT (4) It is further the case of the petitioner that respondent No.3 belongs to "Marwadi Mochi", which community is excluded from the list of Gujarat State Scheduled Caste by amendment in the Constitution (Scheduled Caste) Orders (IInd Amendment) Act, 2002 No.61/02 dated 17.12.2002. That after the said amendment, the persons belonging to Mochi caste no longer belong to Scheduled Caste, except to the extent of those belonging to Dang and Valsad districts. That Marwadi Mochi caste was never a Scheduled Caste community and a person belonging to the said caste cannot avail benefit of Scheduled Caste.
(5) It is also the case of the petitioner that father of respondent No.3 born on 22.09.1938 and is notified as belonging to "Marwadi Mochi" caste as per the birth certificate issued by the local authority i.e. Ahmedabad Municipal Corporation. That the form submitted by respondent No.3 on 19.03.2009 for obtaining caste certificate is also incomplete. That as father of respondent No.3 belongs to "Marwadi Mochi" caste, naturally respondent No.3 belongs to the said caste. That in order to enable respondent No.3 to contest election from the Page 4 of 39 C/SCA/12881/2012 JUDGMENT reserved constituency for the Scheduled Caste, which falls in Ahmedabad (West), respondent No.3 was granted certificate under No.9130/09 dated 19.03.2009. That during campaigning of 2009 Lok Sabha Elections in Ahmedabad (West) seat wherein the petitioner herself contested as an independent candidate, she came to know that respondent No.3 does not belong to "Hindu Vankar" caste and in fact he belongs to "Marwadi Mochi" caste. That after Lok Sabha Election of 2009, the petitioner made inquiry under the Right to Information Act, 2005 to the District Social Welfare Officer, Ahmedabad and on the basis thereof information received such as birth certificate of father of respondent No.3, challenged the validity of the caste certificate issued to respondent No.3.
(6) It is further the case of the petitioner that not only the birth certificate of father of respondent No.3 but father of respondent No.3 also fabricated certificate of his being of Scheduled Caste, in connivance with the authority of Pandit Nehru Vidya Vihar where father of the petitioner was working as a teacher. That the petitioner has also narrated further Page 5 of 39 C/SCA/12881/2012 JUDGMENT efforts and actions, which the petitioner has taken, including filing of criminal complaint against respondent No.3. However, the issue involved in the present petition does not require any elaborate discussion with regard to the said facts.
(7) That pursuant to the application submitted by the petitioner, respondent No.2 initiated proceedings by way of Case No.AaJaka/Ma/1/2010/842426 wherein, without giving any opportunity of being heard, only relying upon submissions of respondent No.3, respondent No.2 rejected the said application of the petitioner by the impugned order dated 13.09.2010.
(8) It appears that the petitioner thereafter approached respondent No.1 authority challenging the validity of the caste certificate issued to respondent No.3. Respondent No.1 authority thereupon passed order dated 01.12.2010 whereby it is held that the caste certificate issued to respondent No.3 is legal, valid and proper. Being aggrieved by the said orders, the petitioner has approached this Court by way of the present petition.
Page 6 of 39C/SCA/12881/2012 JUDGMENT (9) In response to the notice issued by this Court, respondent No.2 has filed affidavit inreply dated 22.10.2012 and has supported the impugned orders dated 13.09.2010 and 01.12.2010. It is, inter alia, contended that respondent No.2 has followed the procedure scrupulously and the scrutiny committee constituted by the State Government pursuant to the directions issued by the Apex Court in case of Kumari Madhuri Patil & Anr. Vs. Additional Commissioner, Tribal Development & Ors. , (1994) 6 SCC 241 has examined the same and particularly in Paragraph Nos.8 to 11 of the affidavitin reply has averred as under:
"8. It is respectfully submitted that upon receipt of the complaint of the present petitioner, the Scheduled Caste Certificate issued by the authority is examined by the State Level Scheduled Caste Certificate Scrutiny Committee under the Chairmanship of the Principal Secretary, Social Justice and Empower Department. The said committee has been constituted upon the direction issued by the Hon'ble Supreme Court of India, in Special Civil Appeal No.4854 of 1994 in a case of Madhuri Patil and others. The State Government has constituted the State Level Committee to examine and verification of the doubtful Scheduled Caste Certificates issued by the authority, by its resolution dated 26.03.2002, and from time to time amended by 29.04.2005, 02.12.2010 as marked and annexed as AnnexureRI (Colly.).
9. It is respectfully submitted that the State Level Scrutiny Committee has examined the Scheduled cast certificate No.9130/2009 issued to the present respondent No.3, and also called upon the present Respondent No.3, before the State Level Scheduled Caste Certificate Scrutiny Committee to make his Page 7 of 39 C/SCA/12881/2012 JUDGMENT explanation against the Scheduled Caste Certificate issued by the authority. The Committee has examined all the evidence on record produced by the respondent No.3 & also checked the grievance raised by the petitioner. That after careful examination of the evidence produced before the Committee, and upon oral submission made by the respondent No.3, the Committee has taken the decision. Therefore after careful examination of the Scheduled Caste Certificate issued by the authority passed a order dated 03.09.10 and held the Scheduled Caste Certificate issued to the present Respondent No.3 as just and valid. The copy of the minutes of the State Level Scheduled Caste Certificate Scrutiny Committee meeting held on dated 27.08.10 under the Chairmanship of the Principal Secretary, Social Justice and Empower Department is marked and annexed as Annexure RII.
10. It is respectfully submitted that the petitioner has raised the contention at para 3 of the petition that the Officer who has granted the Scheduled Caste certificate is also a member of the State Level Scrutiny Committee and therefore, a person can be a judge in his own cause is not permissible under law. It is submitted that the Scheduled Caste Certificate issued by the authority i.e., District Backward Class Welfare Officer, Ahmedabad, and subsequently the said officer has been posted as Deputy Director, Scheduled Caste Welfare Department, Gujarat State, Gandhinagar (at the Head Office) and he was incharge as Joint Director during that period. Therefore by virtue of his post held in the Office, he acted as member secretary of the State Level Scrutiny Committee. Hence, there is no violation of any law but Mr.P.R. Tank acted as per the duties assigned at para 2 of the Government Resolution dated 26.03.2002 to conduct and organize the State Level Scheduled Caste Certificate Scrutiny Committee meeting, prepared the minutes of meeting etc. However, there are other several members also in the Committee to verify and scrutinize the cases of Scheduled Caste Certificates issued by the various authorities.
11. I humbly pray this Hon'ble Court, that looking to the facts and merits of the case of the petitioner; the utmost care is taken by the authority by evaluating the each and every document produced and rightfully given the Scheduled Caste Certificate to the present respondent No.3 & therefore request to dismiss the petition in limine."Page 8 of 39
C/SCA/12881/2012 JUDGMENT (10) The petitioner has filed affidavitin rejoinder dated 22.10.2012 to the aforesaid affidavitinreply and has denied the contentions raised therein and has reiterated the contentions raised in the petition. It is further noteworthy that the petitioner has also annexed certain documents such as extracts of the birth register of father of respondent No.3, letter written by respondent No.3 dated 07.11.2007 to the District Panchayat Caste Welfare Officer. Petitioner has also filed affidavitinrejoinder dated 26.10.2012 to the affidavitinreply filed by respondent No.2 and has contended that the orders are passed without giving any opportunity of hearing to the petitioner. It is also contended that Shri P.R.Tank, Officer of District Panchayat Caste Welfare, could not have decided question of validity of the caste certificate, which was issued by him to respondent No.3.
(11) Record further shows that respondent No.3 has filed surrejoinder to the affidavitin rejoinder filed by the petitioner and has denied the contentions raised by the petitioner.Page 9 of 39
C/SCA/12881/2012 JUDGMENT (12) It may be noted that a further reply is filed by the petitioner to the sur rejoinder, which mainly deals with the criminal complaint filed by the petitioner, the details of the said Criminal Complaint No.4716 of 2011, the order of discharge dated 08.08.2013 passed by the competent magistrate and Criminal Revision Application No.512 of 2013 filed by the present petitioner. Even at the cost of repetition it is clarified that the facts therein are not germane to the issue involved in the present petition and therefore no further details are required to be observed.
(13) It may further be noted that respondent No.3 thereafter filed further affidavit wherein it is contended that respondent No.3, after filing of the petition has contested the Gujarat Assembly Election in the month of December 2012 from Dani Limda reserved constituency and has been elected. It is further averred by respondent No.3 that Director, Social Welfare Department of Scheduled Caste directed the investigation by Vigilance Officer to verify correctness of caste certificate and pursuant thereto a fresh inquiry has been held by the Vigilance Officer and as per the report the caste Page 10 of 39 C/SCA/12881/2012 JUDGMENT certificate issued to respondent No.3 is found to be proper. Respondent No.3 has also raised contention that the petition is filed after considerable delay and the same deserves to be dismissed.
(14) The petitioner has also filed further affidavitinreply to the contentions raised by respondent No.3 in the further affidavit referred to above and has denied the contents of the vigilance report. It further appears that the petitioner has also approached the Vigilance Officer by application dated 30.12.2013 raising similar contentions. It may further be noted that a further affidavit is filed by respondent No.3 dealing with further affidavitinreply dated 20.01.2014. It is contended that the objections raised by the petitioner is dated 30.12.2013, whereas the investigation report is dated 30.10.2013. Respondent No.3 has contended that the petitioner as such no right to file such objections and that the petitioner has no locus standi to file the present petition challenging the impugned caste certificate in view of the fact that the scrutiny committee is not made a party before this Court.Page 11 of 39
C/SCA/12881/2012 JUDGMENT (15) Heard Mr.MHM Shaikh, learned advocate for the petitioner, Mr.Ronak Yagnik, learned Assistant Government Pleader for respondent Nos.1 and 2, and Mr.K.G.Vakharia, learned Senior Counsel, with Mr.M.K.Vakharia, learned advocate for respondent No.3. Though served none appears for the rest of the respondents.
(16) It is noted by the Court that the impugned caste certificate (at AnnexureG Page 61 to the petition) bearing No.9130/09 is dated 19.03.2009. However, in the impugned orders as well as in the prayers prayed for in the petition the said date is mentioned as 29.03.2009. Learned advocate for the petitioner has submitted that this Court may consider the same as "19.03.2009" instead of "29.03.2009". Learned Senior Counsel for respondent No.3 as well as learned Assistant Government Pleader for respondent Nos.1 and
2 have no objection if such a course is adopted by this Court while dealing with this petition.
(17) Learned advocate for the petitioner has taken this Court through the factual matrix as can be culled out from the pleadings of the petition. Relying upon the birth Page 12 of 39 C/SCA/12881/2012 JUDGMENT certificate of father of respondent No.3 it was contended that father of respondent No.3 belongs to "Marwadi Mochi" caste and not "Hindu Vankar" caste and therefore respondent No.3 also does not belong to "Hindu Vankar" caste. It was contended that respondent No.3 applied for caste certificate as respondent No.3 wanted to contest 2009 Lok Sabha Election from Ahmedabad (West) Constituency, which is reserved for Scheduled Caste candidate and relying upon the documents, which are not genuine, respondent No.2competent authority granted the caste certificate to respondent No.3 under No.9130/09 dated 19.03.2009 and on the basis of which respondent No.3 contested the election of Lok Sabha from Ahmedabad (West) Constituency, which is a reserved seat for Scheduled Caste candidate. On this general proposition, the learned advocate for the petitioner has raised two fold contentions - firstly, that the impugned orders are violative of principles of natural justice, as even though the petitioner raised objections against grant of the caste certificate dated 19.03.2009 to respondent No.3 and even though the inquiry was made by respondent No.2 authority on the application filed by the petitioner, the Page 13 of 39 C/SCA/12881/2012 JUDGMENT petitioner was not given an opportunity of being heard. Secondly, it was contended by the learned advocate for the petitioner that Mr.P.R.Tank was the authority in his capacity as Officer of District Panchayat Caste Welfare, Ahmedabad, who granted the impugned caste certificate to respondent No.3 and the same officer decided the issue of the caste certificate by the impugned order dated 13.09.2010 and, therefore, the said officer, who has performed his duty as member secretary of the scrutiny committee for the certificate which was issued by him and thus, Mr.P.R.Tank has acted as judge for his own cause. It was contended that the guidelines which are enunciated by the Apex Court in the case of Kumari Madhuri Patil (supra) are mandatory in nature and the State Level Scrutiny Committee has to consider the same. However, in the instant case while passing the impugned orders, the same is not considered.
(18) Learned advocate for the petitioner has relied upon the judgment of the Apex Court in the case of State of Tamil Nadu and Ors. Vs. A. Gurusamy, (1997) 3 SCC 542 as well as common judgment dated 04.05.2012 of Division Bench of Bombay High Court in the case of Page 14 of 39 C/SCA/12881/2012 JUDGMENT Shri Mangesh Nivrutti Kashid Vs. The District Collector, Satara and allied matters and has pointed out that the mandatory guidelines, as held by the Apex Court in the case of Kumari Madhuri Patil (supra), have not been followed.
(19) Learned Senior Counsel appearing for respondent No.3 has contended that in absence of the scrutiny committee being joined as party in the present petition, the petition is not maintainable. It was contended that the petitioner herself contested 2009 Lok Sabha Election and the petitioner as well as respondent No.3 were not elected and as such the petitioner has no locus standi to challenge the impugned orders as well as the caste certificate issued to respondent No.3. It was further contended that the caste certificate is dated 19.03.2009 and the impugned order is dated 13.09.2010, whereas the present petition is filed after a delay of about two years and therefore on the ground of delay the present petition deserves to be dismissed. It was further contended that in light of the subsequent development, more particularly the fact that the petitioner and respondent No.3 have not been elected in Page 15 of 39 C/SCA/12881/2012 JUDGMENT the petition has, as such, become infructuous. It was contended that even cause of action as mentioned in the petition clearly indicates that the same was filed as the petitioner herself as well as respondent No.3 contested 2009 Lok Sabha Election as an independent candidate and having been defeated, the petitioner has not filed any election petition challenging the election against the candidate, who was elected from Ahmedabad (West) Constituency and therefore the cause of the present petition does not survive and therefore also the petition has become infructuous. It was further contended that the caste certificate as such is required for three purpose - to contest election, for making application in any government service and for getting special benefits given by the government. It was submitted that the petitioner applied for the caste certificate, which was issued on 19.03.2009 for the purpose of contesting election of 2009 Lok Sabha Elections. It was further contended that thereafter respondent No.3 again contested Gujarat Legislative Assembly seat in the year 2012 and has been elected as MLA from Dani Limda Constituency. It was further submitted that even at that stage also the caste certificate was granted Page 16 of 39 C/SCA/12881/2012 JUDGMENT to respondent No.3 and the same has been examined again by the Vigilance Officer under his report dated 30.10.2013. It was therefore submitted that over and above the fact that in the instant case also the scrutiny committee has opined that respondent No.3 possesses a valid caste certificate and the same is also examined again and it is held that the caste certificate issued to respondent No.3 as belonging to Scheduled Caste is legal and proper. It was further contended that the petitioner is not an aggrieved party and, therefore, had no right to be heard before the scrutiny committee. It was further contended that by not hearing the petitioner no prejudice is caused unless the petitioner shows that prejudice is caused to her. It was also contended that the petitioner was the only a whistleblower and she filed an application, which is considered by the scrutiny committee. It was contended that no error is committed by the scrutiny committee and the petitioner does not fall within the category of the "person aggrieved". It was contended that no statutory or legal right of the petitioner has accrued and, therefore, there is no breach committed by the scrutiny committee. It was also Page 17 of 39 C/SCA/12881/2012 JUDGMENT contended that the petitioner is not affected at all. It was contended that the scrutiny committee has heard respondent No.3 and after considering the evidence has acted in accordance with law. Reliance was placed by the judgments of the Apex Court in the cases of:
(i) Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra, 2013 (4) SCC 465;
(ii) Haryana Financial Corporation & Anr.
Vs. Kailash Chandra Ahuja, (2008) 9 SCC 31,
(iii) Raju Ramsing Vasave Vs. Mahesh Deoao Bhivapurkar, (2008) 9 SCC 54, AND
(iv) Manohar s/o. Manikrao Anchule Vs. State of Maharashtra & Anr., (2012) 13 SCC 14.
(20) Relying upon the judgment of the Apex Court in the case of Haryana Financial Corporation & Anr. (supra), learned Senior Counsel appearing for respondent No.3 contended that the petitioner as per the recent trend if the prejudice is not shown, the action taken by an authority cannot be declared to be ipso facto illegal, unlawful or void unless it is shown that nonhearing has prejudicial affected the applicant. It was submitted Page 18 of 39 C/SCA/12881/2012 JUDGMENT that there is no whisper about the prejudice caused to the petitioner in the petition. It was reiterated that the scrutiny committee is not joined as a party, even though it is a separate administrative body. It was also contended that respondent No.2 has not passed the order and in fact he was not the Joint Director but was only incharge Joint Director in absence of the regular Joint Director and he has acted only as a member secretary of the scrutiny committee as per the notification of the Government. It was also contended that the scope of judicial review and interference of this Court under Article 226 of the Constitution of India is very less and in the present case the scrutiny committee has properly examined the evidence entirely raised before it and has recorded finding based on appreciation of such evidence and it does not require any interference by this Court and the petition therefore deserves to be dismissed.
(21) Mr.Ronak Yagnik, learned Assistant Government Pleader for respondent Nos.1 and 2, has supported the impugned orders. It was pointed out that as per the directions issued by the Apex Court in the case of Kumari Madhuri Patil (supra) the State Page 19 of 39 C/SCA/12881/2012 JUDGMENT Government has constituted a scrutiny committee. It was further pointed out that as per the said resolution dated 26.03.2002 the scrutiny committee consists of three members:
(i) Principal Secretary, Social Justice and Empower Department;
(ii) Director (Scheduled Tribe) Welfare;
(iii) Director (Scheduled Tribe Research Center), Gujarat Vidhyapith, Ahmedabad;
(22) It was further contended thereafter by further resolution dated 29.04.2005, "the Joint/Deputy Secretary of Social Welfare and Empowerment Department" has been added as member of the scrutiny committee. Learned Assistant Government Pleader for respondent Nos.1 and 2 relying upon the affidavitin reply filed by respondent No.2 submitted that Shri P.R.Tank has performed his duties as member secretary of the scrutiny committee as incharge Joint Director and has performed such duties as assigned at Paragraph No.2 of the Government Resolution dated 26.03.2002. It was contended that the decision is taken by the scrutiny committee consists four members as aforesaid.Page 20 of 39
C/SCA/12881/2012 JUDGMENT (23) Learned advocate for the petitioner submitted that the directions issued by the Apex Court in the case of Kumari Madhuri Patil (supra) are mandatory in nature. It was predominantly submitted that direction No.6 (the guidelines) given by the Apex Court prescribes "any person" and, therefore, the scrutiny committee ought to have given an opportunity of being heard to the petitioner.
It was further contended that unless the petitioner is called by the scrutiny committee and is permitted to produce the documents, the petitioner would not be in a position to show that in what manner respondent No.3 has committed fraud and by making false representation got the caste certificate. It was also contended that neither the scrutiny committee nor the State Government or any authority can declare any person as belonging to a particular caste and it was contended that only Parliament is empowered under Article 314 of the Constitution of India. It was also contended that in absence of an opportunity of being heard the petitioner could not point out to the scrutiny committee whether the caste certificate issued to respondent No.3 was legal or not. It was therefore submitted that the petition deserves to be allowed.
Page 21 of 39C/SCA/12881/2012 JUDGMENT No further or other submissions are raised by the learned counsel appearing for the respective parties.
(24) Before reverting to the submissions made by the learned counsel appearing for the parties, it would be appropriate to refer to the judgment of the Apex Court in the case of Kumari Madhuri Patil (supra), wherein (at Paragraph No.13) the guidelines have been laid down to streamline the procedure for issuance of social status certificate, its scrutiny and its approval and it has observed thus:
"13. The admission wrongly gained or a appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the RevenueSubDivisional Officer and Page 22 of 39 C/SCA/12881/2012 JUDGMENT Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or nongazetted officer with particulars of castes and subcastes, tribe, tribal community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any office higher in rank of the Director of the concerned department, (II) the Director, Social Welfare / Tribal Welfare / Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial and dead bodies etc. by the concerned castes or tribes or tribal communities etc.
6. The Director concerned, on receipt of the report from Page 23 of 39 C/SCA/12881/2012 JUDGMENT the vigilance officer if he found the claim for social status to be "not genuine'' or "doubtful'' or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation / reply shall convene the Committee and the Joint / Addl. Secretary as Chairperson who shall give reasonable opportunity to the candidate / parent / guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him / it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims visavis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents / guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by daytoday proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent / guardian and the applicant.
10. In case of any delay in finalising the proceedings, Page 24 of 39 C/SCA/12881/2012 JUDGMENT and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent / guardian / candidate before the competent officer or nonofficial and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition / Miscellaneous petition / matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent / guardian / the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission / appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post."
(25) It is a matter of record that the State Government has constituted a scrutiny Page 25 of 39 C/SCA/12881/2012 JUDGMENT committee, as per the directions of the Apex Court vide notification dated 26.03.2002, which is on record at AnnexureR1 (Colly.). The scrutiny committee so constituted consists of the following:
(i) Principal Secretary, Social Justice and Empower Department;
(ii) Director (Scheduled Tribe) Welfare;
(iii) Director (Scheduled Tribe Research Center), Gujarat Vidhyapith, Ahmedabad;
(26) It is further provided in the aforesaid regulation that for the acts like calling of the meeting of the scrutiny committee, for preparation of the minutes, etc. and other ancillary administrative work, the same shall be done by the Joint Director of the office of Director of Scheduled Caste Welfare as member secretary. It further appears from the record that the scrutiny committee was thereafter reconstituted vide resolution dated 29.04.2005 whereby one member i.e. Joint/Deputy Secretary of the said department was added as 4th member of the scrutiny committee. Thereafter, by resolution dated 02.12.2010 the power of revision of scheduled caste certificate Page 26 of 39 C/SCA/12881/2012 JUDGMENT issued by the Collector is given to the scrutiny committee.
(27) In order to verify which procedure the scrutiny committee has followed and which documents are taken into consideration, this Court was also shown the original file of the proceedings by learned AGP. It appears that on 27.08.2010 at 15:30 hrs. under the Chairmanship of Principal Secretary, Social Justice and Empower Department was held and three members as well as one invitee member has taken part in the proceedings. It is also evident that Mr.P.R.Tank has also remained present as Member Secretary. Record further reveals that in the said meeting cases of 14 persons were scrutinized by the scrutiny committee and minutes of the said meeting was signed by Principal Secretary as Chairman and Mr.P.R.Tank as Member Secretary. File also indicates that the scrutiny committee has considered each case individually.
(28) In the instant case, the meeting of the scrutiny committee was held on 27.08.2010, wherein the caste certificate impugned issued to respondent No.3 was considered.
The minutes of meeting was placed on record Page 27 of 39 C/SCA/12881/2012 JUDGMENT by respondent No.2. Respondent No.2 in his affidavit has clearly stated that Mr.Tank is holding a post of Deputy Director, Scheduled Caste Welfare Department, Gujarat State, Gandhinagar and was incharge as Joint Director during the period when the case of respondent No.3 was considered by the scrutiny committee. It is further averred by respondent No.2 that Mr.P.R.Tank has acted as member secretary of the scrutiny committee and has performed the duties which are assigned at paragraph No.2 of Government Resolution dated 26.03.2002. The duties of the Member Secretary are clearly defined in Government Resolution dated 26.03.2002, which is only limited to conduct and organize the meeting of the scrutiny committee, preparation of minutes and other secretarial acts, etc. The duties which are mentioned in the aforesaid resolution only envisage his role as member secretary and are not a part of the scrutiny committee for decision making process. It is clearly borne out from the record that Mr.P.R.Tank was incharge as a Joint Director in the Office of Director Scheduled Caste Welfare Department and the actual work of verification and scrutinizing of the certificate of respondent No.3 is done by Page 28 of 39 C/SCA/12881/2012 JUDGMENT the four member scrutiny committee. The minutes annexed to the affidavit of respondent No.1 reveals that the Chairman as well as three members were present in the meeting held on 27.08.2010 when caste certificate of respondent No.3 was considered by the scrutiny committee.
(29) In view the aforesaid therefore, Mr.P.R.Tank has acted as member secretary as per the duties prescribed in Paragraph No.2 of Government Resolution dated 26.03.2002 in a different capacity wherein the scrutiny committee consisting of Principal Secretary, Social Justice and Empowerment Department as chairman and other three members have verified and scrutinized the evidence and have come to the conclusion that the Scheduled Caste certificate given to respondent No.3 is legal and proper and is not required to be cancelled. It may further be noted that in the meeting of the scrutiny committee dated 27.08.2010 as many as 15 cases were considered and therefore, in light of the aforesaid position it cannot be said that Mr.P.R.Tank has acted as a judge for his own cause. The resolution of the State Government dated 26.03.2002 prescribes the duties of the Member Secretary of the Page 29 of 39 C/SCA/12881/2012 JUDGMENT State Level Committee, which are incidental to duties, which are cast upon the State Level Scrutiny Committee.
(30) Proceedings of the scrutiny committee clearly transpires that over and above the documents submitted by the petitioner and respondent No.3 the scrutiny committee has also taken into consideration the documents such as rojkam prepared by TalatiCum Manatri of Kantharia Gram Panchayat, Tal. Chuda Dist. Surendranagar, wherein it is stated that grandfather of respondent No.3, Shri Karshanbhai Talshibhai, had two kacha houses at Vankar Vas, at Kantharia, bearing Property No.447. The committee has also taken into consideration the panch rojkam made on 24.02.2010. The committee has also taken into consideration the letter dated 25.02.2010 of Registrar of Birth & Death Department of Ahmedabad Municipal Corporation addressed to Shri Mukeshbhai Khengarbhai that Khengarbhai Karshanbhai's birth date was 10.07.1933 and he belonged to Vankar Caste, who happens to be the brother of the father of respondent No.3. Considering all these, the scrutiny committee has come to the conclusion that it is established that respondent No.3 belongs Page 30 of 39 C/SCA/12881/2012 JUDGMENT to Hindu Vankar caste. The scrutiny committee has also considered the school leaving certificate of the father of respondent No.3, which is issued by Principal of Kantharia Pay Central School, Kandari, under No.239 wherein in the column of subcaste it is mentioned "Harijan Vankar". It is also pertinent to note that the scrutiny committee has also taken into consideration the report dated 05.04.2008 of Police Inspector of Karanj Police Station, Ahmedabad City wherein it is stated that respondent No.3 belongs to Vankar Caste. Considering the aforesaid facts, it clearly transpires that the scrutiny committee has followed the guidelines of the Apex Court as held in the case of Kumari Madhuri Patil (supra) and has passed the impugned order. The scrutiny committee has also taken into consideration the report of the police given by Police Inspector of the concerned police station and the allegations made by the petitioner are found to be without any basis. Even in the petition, except bare allegations and one document, which is in the name of father of respondent No.3, nothing is placed on record by the petitioner. The scrutiny committee has even called from the report of the Talaticum Page 31 of 39 C/SCA/12881/2012 JUDGMENT Mantri of the native of respondent No.3 i.e. Village Kantharia, Tal. Chuda, Dist. Surendranagar and has arrived at the finding of fact that respondent No.3 belongs to Hindu Vankar community. Judgment of the Bombay High Court in the case of Shri Mangesh Nivrutti Kashid (supra) therefore would not be applicable to the facts of the present case.
(31) The Apex Court in the case of Kumari Madhuri Patil (supra) has observed in Paragraph No.15 as under:
"14.The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a Court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and record a finding, though another view, as a Court of appeal may be possible, it is not a ground to reverse the findings. The Court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately recorded the finding. Each case must be considered in the backdrop of its own facts."
(32) The Apex Court in the case of Pournima Suryakant Pawar Vs. State of Maharashtra & Page 32 of 39 C/SCA/12881/2012 JUDGMENT Ors., (2013) 3 SCC 690 and has observed thus (at Paragraph No.13).
"13. Upon examination of the reasons given by the Scrutiny Committee in both the matters, we are unable to accept the submissions made by Mr.Sudhanshu Choudhari that the High Court has committed any error in affirming the decision rendered by the Scrutiny Committee in both the matters. In fact, the decision rendered by the High Court would fall squarely within the ratio laid down by this Court in Madhuri Patil. The conclusions rendered by the Scrutiny Committee are reasonable and fully supported by the material placed on record. Therefore, the conclusions reached by the Scrutiny Committee, and affirmed by the High Court cannot be said to be either perverse or based on no evidence."
(33) In the instant case also, this Court is not a court of appeal to appreciate the evidence. The scrutiny committee has appreciated and evaluated the evidence which was before it and after considering all such material facts has recorded finding of facts. In the facts and circumstances of this case, therefore, no error is found in the decision of the scrutiny committee, which warrants interference of this Court by judicial review.
(34) It is also found from the proceedings that the impugned orders as well as the minutes that the complaint filed by the petitioner has been considered by the scrutiny Page 33 of 39 C/SCA/12881/2012 JUDGMENT committee. The petitioner has not established as to how the petitioner is being affected by the impugned orders adversely. The petitioner has not averred in the petition as to how the petitioner is prejudiced. It is a matter of fact and as is mentioned in the petition itself that the petitioner was rival candidate in 2009 Lok Sabha Elections for Ahmedabad (West) Constituency, which is a reserved seat for Scheduled Caste. It is also an admitted position that both the petitioner and respondent No.3 have not been elected in the said elections.
(35) Reliance placed upon the judgment of the State of Tamilnadu (supra) by the learned advocate for the petitioner applies qua the person whose certificate is sought to be cancelled wherein observance of principles of natural justice by giving an opportunity of hearing to the person affected, whose certificate is in question, is necessary. In the instant case no legal or statutory right exists in favour of the petitioner and there is no injury to the petitioner and as such the petitioner is not an "aggrieved person". (36) At this juncture, it would be profitable to refer to the judgment of the Apex Court in Page 34 of 39 C/SCA/12881/2012 JUDGMENT the case of Ayaaubkhan Noorkhan Pathan (supra) wherein at Paragraph Nos.68 it is observed thus:
"6. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Person aggrieved :
7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons.
Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities.Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.(Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad and Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736 : (1996 AIR SCW3424); and Tamil Nadu Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and Ors., (2009) 2 SCC Page 35 of 39 C/SCA/12881/2012 JUDGMENT
784).
8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised.
(Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan and Ors. v. Union of India and Ors., AIR 1977 SC 1361)."
(37) Similarly the Apex Court in the case of Haryana Financial Corporation (supra) in Paragraph Nos.2325 and 36 has observed thus:
"23. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was 'no whisper' in the writ petition showing any prejudice to the delinquent as required by B. Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is 'writ large'.
24. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar, this Court stated;
"Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case".
25. It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem ("Hear the other side").But it is equally well settled that the concept 'natural justice' is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules Page 36 of 39 C/SCA/12881/2012 JUDGMENT of natural justice are not embodied rules and they cannot be imprisoned within the straitjacket of a rigid formula.
36. The recent trend, however, is of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that nonobservance had prejudicially affected the applicant."
(38) Considering the aforesaid binding decisions of the Apex Court the petitioner is not able to establish nor there is any pleading in the petition that the petitioner is prejudiced in any manner as the scrutiny committee did not grant any opportunity of being heard to the petitioner. The impugned orders therefore would not vitiate on the ground that no hearing was given to the petitioner.
(39) Coupled with the aforesaid position, it is also a matter of record that respondent No.3 applied for a fresh caste certificate in the year 2012, the said certificate was also subject matter of objection raised by one Shri Jayantilal Parmar. Director, Social Welfare Department of Scheduled Caste acted upon such objection and directed the investigation by vigilance officer to verify the correctness of the caste certificate. The vigilance officer by his report dated 30.10.2013 has given an opinion that Page 37 of 39 C/SCA/12881/2012 JUDGMENT respondent No.3 belongs to "Vankar" community and the caste certificate granted to respondent No.3 is not required to be canceled. In light of the aforesaid therefore, the petitioner is neither an "aggrieved person" nor is prejudiced by non grant of hearing before the scrutiny committee. It is found that the scrutiny committee, while scrutinizing the caste certificate issued to respondent No.3, has properly examined the same on the basis of the relevant material before it.
(40) It may further be noted that the impugned orders in this the petition are dated 13.09.2010 and 01.12.2010 and the petition is filed before this Court on 24.09.2012 and, as stated above, even thereafter a fresh caste certificate is issued to respondent No.3, which is found to be genuine and even the vigilance officer report clearly indicates that such caste certificate issued to respondent No.3 is not required to be cancelled. Considering the directions given by the Apex Court in the case of Kumari Madhuri Patil (supra), when the report is in favour of the candidate and found to be genuine and true, no further action need be taken, except where the Page 38 of 39 C/SCA/12881/2012 JUDGMENT report or the particulars given are found to be false or fraudulently obtained. As observed hereinabove, this Court finds no error of finding of fact arrived at by the scrutiny committee while passing the impugned order dated 30.09.2010 similarly no error is found in the order dated 01.12.2010. Therefore in the facts and circumstances of this case, no interference is called for by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
(41) In the result, the petition fails on both grounds that are raised by the learned advocate appearing for the petitioner and is hereby dismissed. RULE discharged. There shall be no order as to costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 39 of 39