Bombay High Court
Niraj Kamlakar More vs Scheduled Tribe Certificate on 11 May, 2012
Author: A.S. Oka
Bench: A.S. Oka, Sunil P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2016 OF 2012
Niraj Kamlakar More,
Age: 16 years (Minor),
Being minor represented through
his natural guardian i.e. father:-
Shri. Kamlakar Rajaram More,
R/o. Karegaon Road, Parbhani,
Tq. & Dist. Parbhani. ...PETITIONER
VERSUS
Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad
Through its Member Secretary. ...RESPONDENT
WITH
WRIT PETITION NO. 1420 OF 2012
Pradeep s/o Bhaidas Koli (Tawar),
Age: 38 years, Occ: Service,
R/o. Shrikrushna Nagar, HUDCO,
Aurangabad,
Tq. & Dist. Aurangabad. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through it's Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
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2. The Police Commissioner,
Aurangabad.
3. The Vice Chairman/Member-Secretary,
Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad
Division, Aurangabad. ...RESPONDENTS
WITH
WRIT PETITION NO. 3634 OF 2012
Shri. Rajesh s/o Pundlik Suryawanshi,
Age: 36 years, Occ: Service,
R/o.'Vedant', Plot No.8,
Shivajinagar, Wadi-Bhokar Road,
Deopur, Dist. Dhule. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Tribal Development Department,
Mantralaya, Mumbai-32.
Through its Secretary.
2. The Scheduled Tribe Certificate
Scrutiny Committee, Nashik
Division, Nashik.
Through its Chairman/Director.
3. The Executive Magistrate,
Nashik, Dist. Nashik. ...RESPONDENTS
WITH
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WRIT PETITION NO. 4046 OF 2012
Shri. Sacchidanand s/o Shrikrushna
Suryawanshi,
Age: 19 years, Occ: Student,
R/o. Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Department of Tribal Development,
Mantralaya, Mumbai-32.
Through its Secretary.
2. The Scheduled Tribe Caste Certificate
Scrutiny Committee, Nashik
Division, Nashik.
Through its Secretary.
3. The Sub Divisional Officer,
Shrirampur, Sub Division,
Shrirampur.
4. BRACT's Vishwakarma Institute of
Information Technology,
S.No.2/3/4, Kondhwa Bk.,
Pune-411 048.
Through its Principal.
5. University of Pune,
Through its Registrar. ...RESPONDENTS
WITH
WRIT PETITION NO. 4050 OF 2012
Shri. Anil s/o Rajesing Thakur,
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Age: 42 years, Occ: Service,
R/o.Sindkheda, Tq. Sindkheda,
Dist. Dhule. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Department of Tribal Development,
Mantralaya, Mumbai-32.
Through its Secretary.
2. The Scheduled Tribe Caste Certificate
Scrutiny Committee, Nashik
Division, Nashik.
Through its Secretary.
3. The Sub Divisional Magistrate,
Nashik City Division, Dist. Nashik.
Dist. Nashik.
4. The Divisional Controller,
Maharashtra State Road Transport
Corporation Ltd., Dhule,
Dist. Dhule. ...RESPONDENTS
...
Mr. S.C. Phatale, Advocate holding for
Mr. Mahesh S. Deshmukh, Advocate for the
petitioner in W.P. No. 2016/2012.
Mr. Y.K. Bobade, Advocate holding for
Mr. S.S. Tope, Advocate for respondent sole in
W.P. No. 2016/2012.
Mr. Y.C. Yeramwar, Advocate holding for
Mr. Pratap V. Jadhavar, Advocate for the
petitioner in W.P. No.1420/2012.
Mr. D.R. Korde, A.G.P. for respondent Nos. 1 & 2
in W.P. No. 1420/2012.
Mr. D.B. Bhange, Advocate for respondent No.3 in
W.P. No.1420/2012.
Mr. S.C. Yeramwar, Advocate holding for
Mr. Anil S. Golegaonkar, Advocate for the
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petitioners in W.P. Nos. 3634/2012, 4046/2012 and
4050/2012.
Mr. D.R. Korde, A.G.P. for respondent Nos. 1 & 3
in W.P. Nos. 3634/2012, 4046/2012 and 4050/2012.
Mr. P.P. More, Advocate for respondent No. 2 in
W.P. No.3634/2012.
Mr. D.B. Bhange, Advocate for respondent No.2 in
W.P. No. 4046/2012.
Mr. K.D. Bade Patil, Advocate for respondent No.2
in W.P. No.4050 of 2012.
...
CORAM: A.S. OKA AND
SUNIL P. DESHMUKH, JJ.
DATED : 11TH MAY 2012
ORAL JUDGMENT : [PER A.S. OKA, J.]
1. Considering the fact that the issue arising in these petitions is identical, we had put the parties to the notice that the petitions will be disposed of finally at the stage of admission.
2. For the sake of convenience, we are making a reference to the facts of the case in Writ Petition No. 2016 of 2012. This is a case where the challenge is to the order dated 2nd December, 2011 passed by the Scheduled Tribe Certificates ::: Downloaded on - 09/06/2013 18:37:03 ::: 6 wp2016.12-tupe.doc Scrutiny Committee, Aurangabad Division, Aurangabad. The petitioner applied for caste verification on the basis of the caste certificate dated 29th September, 2006, issued by the Deputy Collector and the District Supply Officer, Parbhani. The certificate issued was to the effect that the petitioner belongs to Thakur Caste which is recognised as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order, 1950. In the impugned order, the Caste Scrutiny Committee made a reference to the provisions of Rule 5(2) of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of Certificate) Rules, 2003 (hereinafter referred to as "the said Rules"). The Caste Scrutiny Committee came to the conclusion that the competent authority who issued caste certificate to the petitioner had no territorial jurisdiction to issue caste certificate and therefore, the certificate has been issued without jurisdiction. The Caste Scrutiny Committee, therefore, held the certificate to be invalid and directed that the ::: Downloaded on - 09/06/2013 18:37:03 ::: 7 wp2016.12-tupe.doc certificate should be cancelled and confiscated accordingly. The Caste Scrutiny Committee granted liberty to the petitioner to obtain a fresh caste certificate in the manner prescribed by said Rules and submit it to the Scrutiny Committee. The Caste Scrutiny Committee made it clear that cancellation of the certificate is without affecting the merit of his claim. In other writ petitions, there are similar orders passed by the Scrutiny Committee wherein findings have been recorded that the caste certificates on the basis of which caste validity was sought were issued by the competent authorities having no territorial jurisdiction to issue the same.
3. The detailed submissions have been made in these petitions and in particular in Writ Petition No. 2016 of 2012 by the learned Counsel appearing for the petitioner. We have heard submissions the learned A.G.P and the learned Counsel appearing for the Scrutiny Committees.
The submissions have been made by the learned ::: Downloaded on - 09/06/2013 18:37:03 ::: 8 wp2016.12-tupe.doc Counsel appearing for the Petitioner by inviting our attention to the provisions of the Maharashtra Scheduled Caste, 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 said Act"). The submissions have been made on the procedure laid down by the said Rules and in particular Rule 5 which deals with grant of Scheduled Tribe Certificate to migrated persons.
Very elaborate submissions have been made before us as regards the meaning of a migrant within the State and the jurisdiction conferred on various competent authorities within meaning of the said Act to issue caste certificate to migrants. In addition to these submissions, the learned Counsel appearing for the petitioner in Writ Petition No. 2016 of 2012 has made submissions on the basis of provisions of Section 6 and 7 of the said Act. He has relied upon a decision of the Apex Court in Vasant Pandurang Narwade @ Narvde vs. Subhash ::: Downloaded on - 09/06/2013 18:37:03 ::: 9 wp2016.12-tupe.doc [2001(10)JT 125]. His submission is that without going to the question whether the competent authority had territorial jurisdiction to issue caste certificate, it was the duty of the Caste Scrutiny Committee to make adjudication and to record findings on the caste claim of the petitioner.
4. In short, the submissions have been made about the interpretation of Sub Rule (2) of Rule 5 of the said Rules with regard to the territorial jurisdiction of the competent authorities to issue caste certificates. After the submissions were heard, we have given our careful consideration to the same. After considering the provisions of the said Act and the said Rules , we are of the view that for deciding these petitions, it will not be necessary to go into issue of interpretation of sub Rule (2) of Rule 5 of the said Rules.
5. A brief reference will have to be made to the provisions of the said Act and the Rules. We ::: Downloaded on - 09/06/2013 18:37:03 ::: 10 wp2016.12-tupe.doc will have to advert to the three important provisions of the said Act which are Sections 4,6 and 7 which read 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 the following the procedure as prescribed, issue a Caste Certificate withich 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 invalid. The Caste Certificate issued by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the ::: Downloaded on - 09/06/2013 18:37:03 :::
11 wp2016.12-tupe.doc Scrutiny Committee."
"6. Verification of Caste Certificate by Scrutiny Committee.
(1) The Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees.
(2) After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in ::: Downloaded on - 09/06/2013 18:37:03 :::
12 wp2016.12-tupe.doc such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate.
(3) The appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions who has not obtain such certificate.
(4) The Scrutiny Committee shall follow such procedure for ::: Downloaded on - 09/06/2013 18:37:03 ::: 13 wp2016.12-tupe.doc verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed."
"7. Confiscation and cancellation of false Caste Certificate.
(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such ::: Downloaded on - 09/06/2013 18:37:03 :::
14 wp2016.12-tupe.doc procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.
(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High court under Article 226 of the Constitution of India."
A reference will have to be made to definition of "Comptent Authority" which is defined by clause
(b) of Section 2 of the said Act, which reads thus:
"2. In this Act, unless the context otherwise requires,-
(a) ........
(b) "Competent Authority" means a officer or authority authorised by the Government, notification in the Official Gazette, to issue a Caste Certificate, for such area or for ::: Downloaded on - 09/06/2013 18:37:03 :::
15 wp2016.12-tupe.doc such purposes as may be specified in the said notification and shall include all the Competent Authorities already designated by the Government before the coming into force of this Act, having jurisdiction over the area or place to which the applicant originally belongs, unless specified otherwise;"
6. From the scheme of the said Act, it appears that a caste certificate is to be issued by the competent authority defined under the said Act after following prescribed procedure. It is well settled that a caste certificate granted by the competent authority in accordance with the section 4 of the said Act is not conclusive and it is only a prima facie evidence of caste of a person. Sub-section (2) of Section 4 of the said Act makes it clear that a caste certificate issued by the competent authority shall be valid only subject to the verification and grant of validity certificate by the Scrutiny Committee. Thus, a ::: Downloaded on - 09/06/2013 18:37:03 :::
16 wp2016.12-tupe.doc caste certificate issued by the competent authority in accordance with Section 4 of the said Act is valid, only when a validity certificate is granted by the Scrutiny Committee. Sub-section (2) provides that a caste certificate is invalid when it is issued by any person, officer or authority other than the competent authority within meaning of the said Act. By virtue of Section 6(2) of the said Act, a power is conferred on the Scrutiny Committee to make verification of the caste certificate issued by the competent authority. Therefore, for the purposes of making adjudication of caste claim of a person on his application, the caste certificate issued by the competent authority under Section 4 must be before the Scrutiny Committee. The reason being that power of the Scrutiny Committee as indicated by Sub-Section (2) of Section 6 is to make verification of the caste certificate issued by the competent authority.
7. Perusal of the findings recorded by the ::: Downloaded on - 09/06/2013 18:37:03 ::: 17 wp2016.12-tupe.doc Scrutiny Committee in the impugned orders shows that it is not held that the officer who has issued caste certificate is not the competent authority. It is not held that the certificate has been issued by any person, officer or authority other than the competent authority. The finding is that the competent authority which has issued the caste certificate did not have territorial jurisdiction to issue the caste certificate to the concerned petitioner and the territorial jurisdiction by virtue of Rule 5(2) was vesting in some other competent authority. We may also note that findings have been recorded in the impugned orders that caste certificates are invalid only on the ground that the same are issued by the competent authority having no territorial jurisdiction to issue the same. The Scrutiny Committee has proceeded to direct the cancellation and confiscation of caste certificates only for the reason that the competent authority had no territorial jurisdiction to issue the same.
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8. Perhaps, the Scrutiny Committee has ignored that sub-section (2) of section 4 specifically lays down in what circumstances a caste certificate issued can be said to be invalid. It is specifically provided therein that a caste certificate is invalid, if it is issued by any person, officer or authority other than the competent authority. As we have already held that in the cases in hand, it is not even the finding recorded that caste certificates of the Petitioners have been issued by any person, officer or authority other than the competent authority.
9. Therefore, the question is whether a caste certificate issued by the competent authority can be said to be invalid within meaning of sub-section (2) of section 4 on the ground that the competent authority which is otherwise competent to issue a caste certificate had no territorial jurisdiction to issue the particular ::: Downloaded on - 09/06/2013 18:37:03 ::: 19 wp2016.12-tupe.doc caste certificate. In this connection, we may note the well settled position that there is a difference between an order which is illegal and order which is nullity. An order is invalid when it is nullity. Merely because an order is illegal, it cannot be said to be invalid. In this connection, we may make a useful reference to a decision of the Division Bench of this Court in case of Wasp Pump Pvt. Ltd. vs. Union of India and others [2008(3) Mh.L.J. 238] and in particular paragraph-8 thereof. The Division Bench has held thus:-
"It is now a well settled proposition of law that if an order is nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced."
(emphasis added) Thus, it is very clear that an order which is nullity is an invalid order and therefore, ::: Downloaded on - 09/06/2013 18:37:03 ::: 20 wp2016.12-tupe.doc invalidity can be set up in any proceedings in which said order is sought to be relied upon or sought to be executed.
10. As we have already pointed out, on plain reading of sub-section (2) of Section 4 of the said Act, a caste certificate is invalid only if it is issued by a person, officer or the authority other than the competent authority. In the present case, caste certificates are issued by the competent authority. However, we are also considering the question whether the caste certificate issued by the competent authority which lacks territorial jurisdiction can be said to be invalid. We may state here that the distinction between lack of inherent jurisdiction and lack of pecuniary or territorial jurisdiction is well settled. If an order is passed by an authority, court or quasi-judicial authority which lacks inherent jurisdiction to pass the same, there is no difficulty in holding that such order is nullity or is invalid. The question is whether ::: Downloaded on - 09/06/2013 18:37:03 ::: 21 wp2016.12-tupe.doc an order passed by the authority which does not lack inherent jurisdiction but which lacks territorial jurisdiction can be said to be nullity.
11. On this aspect, we may make a reference to a decision of the Apex Court in case of Commissioner of Income Tax, Shimla vs. Greenworld Corporation, Parwanoo [(2009) 7 Supreme Court Cases 69] and in particular paragraph-63 thereof.
In paragraph-63 the Apex Court has held thus :
"63. In Mantoo Sarkar vs. Oriental Insurance Co. Ltd. & Ors. [2008 (16) SCALE 197], this Court held: (SCC pp. 248-49, paras 18-20) "18. The Tribunal is a court subordinate to the High Court. An appeal against the Tribunal lies before the High Court. The High Court, while exercising its appellate power, would follow the provisions contained in the Code of Civil Procedure or akin thereto. In ::: Downloaded on - 09/06/2013 18:37:03 ::: 22 wp2016.12-tupe.doc view of sub-section (1) of Section 21 of the Code of Civil Procedure, it was, therefore, obligatory on the part of the appellate court to pose unto itself the right question, viz., whether the first respondent has been able to show sufferance of any prejudice. If it has not suffered any prejudice or otherwise no failure of justice had occurred, the High Court should not have entertained the appeal on that ground alone.
19. We, however, while taking that fact or into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. Objection in regard to jurisdiction may be taken at any stage. ( See Chief Engineer, Hydel Project v.Ravinder Nath , [ (2008) 2 SCC 350 ] ) wherein inter alia the decision of this Court in Kiran Singh v. Chaman Paswan, [AIR 1954 SC 340] was followed, stating:
(Ravinder Nath case, SCC p.361, para ::: Downloaded on - 09/06/2013 18:37:03 ::: 23 wp2016.12-tupe.doc
26) '26. The Court also relied upon the decision in Kiran Singh v.
Chaman Pawan [AIR 1954 SC 340] and quoted (in Harshad Chiman Lal case {[(2005) 7 SCC 791], SCC pp.
804-805, para 33} therefrom: {Kiran Singh case, AIR p.342, para 6) "6. ...It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ...strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
Though in the aforementioned decision these observations were made since the defendants before raising the objection to the ::: Downloaded on - 09/06/2013 18:37:03 ::: 24 wp2016.12-tupe.doc territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity.'
20. A distinction, however, must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be..."
(emphasis added) The Apex Court specifically held that lack of jurisdiction as regards the subject matter of the suit will render the decision nullity but in case of lack of territorial or pecuniary jurisdiction, the decision will not be invalid. In other words, a judgment rendered by a Court which lacks territorial jurisdiction will not be a nullity.
::: Downloaded on - 09/06/2013 18:37:03 :::25 wp2016.12-tupe.doc Lastly, on this aspect, a reference will have to be made to a decision in the case of Krishnadevi Malchand Kamathia and others vs. Bombay Environmental Action Group and others [(2011) 3 Supreme Court Cases 363]. In paragraphs 16 to 19 the Apex Court has discussed the issue which reads thus :
"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil [(1996) 1 SCC 435], Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd.,[[(1997) 3 SCC 443], M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470) and Sneh Gupta v. Devi Sarup [(2009) 6 SCC
194)], this Court held that whether an order is valid or void, cannot be determined by the parties. For ::: Downloaded on - 09/06/2013 18:37:04 :::
26 wp2016.12-tupe.doc setting aside such an order, even if void, the party has to approach the appropriate forum.
17. In State of Punjab v. Gurdev Singh [(1991) 4 SCC 1] this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in SMith v. East Elloe RDC [1956 ac 736, wherein Lord Radcliffe observed :
(AC pp. 769-70) "...An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity [on] its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."::: Downloaded on - 09/06/2013 18:37:04 :::
27 wp2016.12-tupe.doc
18. In Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377], this Court took a similar view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the ig order jurisdiction/competence lacks inherent and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the ::: Downloaded on - 09/06/2013 18:37:04 ::: 28 wp2016.12-tupe.doc same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."
12. Thus, a caste certificate issued by the competent authority cannot be said to be invalid or nullity only on the ground that the competent authority did not have territorial jurisdiction.
Thus, it follows that in the facts of these cases, the caste certificates issued by the competent authority cannot be said to be invalid. The Scrutinee Committee cannot refuse to exercise its power on the ground that the caste certificate produced before it for validation was issued by the competent authority having no territorial jurisdiction to issue the same. When a caste certificate issued by the competent authority is not invalid within meaning of sub-section (2) of Section 4 of the said Act, the Scrutiny Committee ::: Downloaded on - 09/06/2013 18:37:04 ::: 29 wp2016.12-tupe.doc cannot refuse to exercise its jurisdiction of adjudication or verification of caste claim. In cases in hand, the only finding of the Scrutinee Committee is that the competent authority which issued caste certificate had no territorial jurisdiction to issue the certificate. Therefore, we hold that the caste certificates are not invalid and the Caste Scrutiny Committee was duty bound to make adjudication on the respective caste claims of the petitioners.
13. Before we conclude, a reference will have to be made to a decision of this Court in Writ Petition No. 1945 of 2003 and other connected writ petitions (Musa s/o Ibrahim vs. The State of Maharashtra and others) decided by the Division Bench of this Court (Aurangabad Bench) dated 15th September, 2003. In these petitions, the issue before this Court was that when it is established that the so called caste certificate produced before the Scrutiny Committee was not at all issued by the authority by which it was ::: Downloaded on - 09/06/2013 18:37:04 ::: 30 wp2016.12-tupe.doc purportedly issued, whether the Caste Scrutiny Committee can close the proceedings of caste verification. In this decision, Division Bench has referred to a decision of the Apex Court in Special Appeal (Civil) Nos. 4409-10/2011 in case of Vasant Pandurang Narwade vs. Subhash Dashrathe.
Division Bench in Paragraph 7 of its Judgment relied upon the following observations of the Apex Court in the said decision:-
"We are, however, of the opinion that the Scrutiny Committee did not act fairly and failed to comply with even the basic rules of natural justice. The appellant was called upon to establish his caste but the material produced by him was not considered by the Scrutiny Committee. It is only the validity of the certificate that was considered. The real issue was overlooked by the Committee. The Scrutiny Committee ought to have returned a finding as to whether or not the appellant belonged to "Kunbi" caste as claimed ::: Downloaded on - 09/06/2013 18:37:04 :::
31 wp2016.12-tupe.doc by him on the basis of the certificates and other documents produced by him and should not have stopped short of that determination merely by considering whether the earlier certificate was in fact issued by the Tahsildar or not.
Since the High Court has mainly relied upon the finding of the Scrutiny Committee, we consider it appropriate to set aside the order of the High Court and remand the petition to the High Court with a direction that the High Court shall specifically require the Scrutiny Committee to determine the question of caste of the appellant and for doing so grant opportunity to the parties to produce all such evidence as they may wish in support of their respective claims. The Scrutiny Committee shall be made time bound to furnish its report and in doing so the Scrutiny Committee shall ignore its earlier report-cum-order dated 28.8.2000 and the findings recorded therein. The High Court may, after receipt of report, decide the petition afresh after hearing the ::: Downloaded on - 09/06/2013 18:37:04 ::: 32 wp2016.12-tupe.doc parties."
(Emphasis added) After considering the decision of the Apex Court, in paragraph-12, the Division Bench held thus :-
"12. Once a claimant of social status as belonging to reserved castes has utilised the caste certificate, either for seeking appointment against a reserved post or got elected against a reserved seat in a local self-Government body like Village Panchayat, Panchayat Samiti, Zilla Parishad or Municipal Council/Corporation, the benefit of reservation so obtained cannot be deprived solely on the ground that the caste certificate was found to be bogus or fabricated. When a person is elected as a Member of any of the self-Government bodies, he/she can be unsitted only when it is found by the Committee that he/she does not belong to the reserved category claimed to be. Even if the caste certificate is found to be bogus or false, the ::: Downloaded on - 09/06/2013 18:37:04 :::
33 wp2016.12-tupe.doc social status claim is required to be scrutinised by the Committee by affording an opportunity of leading evidence and on the basis of the parameters set out for verification by the Caste Verification Act and/or the law laid down by the Apex Court.
IN the process of verification if the Committee reaches to a conclusion that the caste certificate was not issued by the competent authority, it cannot stop there itself specifically when the caste certificate has been utilised either for appointment or for election against a reserved post/seat. The Committee will have to call upon the claimant to lead evidence in support of his/her social status notwithstanding the caste certificate and based on the evidence produced by him/her, the vigilance enquiry report and the social, religious practices and linguistic traits etc., the caste claim is required to be decided by the Committee. If finally the Committee comes to the conclusion ::: Downloaded on - 09/06/2013 18:37:04 ::: 34 wp2016.12-tupe.doc that the claimant does not belong to the caste he/she claims to be, it has to invalidate the caste claim and it has powers to direct confiscation and cancellation of the said certificate."
(emphasis added)
15. There is one more aspect which will have to be noted. The Scrutiny Committee under the impugned order has directed cancellation and confiscation of caste certificates. We may note here that under sub-section (1) of Section 7 of the said Act, the power of cancellation and confiscation of caste certificate can be exercised only if the Caste Scrutiny Committee is of the opinion that the certificate was obtained fraudulently. Therefore, the direction issued under the impugned orders to cancel and confiscate the caste certificates is illegal. The finding that the caste certificates were obtained fraudulently could have been recorded only while deciding the caste claim on merits. In the cases in hand, there is no adjudication made on merits ::: Downloaded on - 09/06/2013 18:37:04 ::: 35 wp2016.12-tupe.doc and hence, there is no finding that the caste certificates were obtained fraudulently.
16. Our attention was also invited to a Government Resolution dated 10th March, 2005. We are aware that this Government Resolution is not applicable to the matter of grant of caste certificate of a person belonging to Scheduled Tribe. This decision is applicable to other categories such as Scheduled Castes, Other Backward Class etc. The decision of the State Government which is reflected from the said Government Resolution is that in case of a migrant who has settled down permanently at a particular place, he can make an application for grant of caste certificate to the competent authority having jurisdiction over the local area.
17. In the circumstances, the orders impugned will have to be quashed and set aside only on the ground that the findings of the competent authority that the caste certificates are invalid ::: Downloaded on - 09/06/2013 18:37:04 ::: 36 wp2016.12-tupe.doc are completely erroneous and illegal. In the circumstances, we are required to pass orders of remand directing the concerned Caste Scrutiny Committees to consider the caste claim of the respective petitioners on merits. Hence, we pass following order.
: O R D E R :
(1) The impugned orders passed by the concerned Caste Scrutiny Committees are quashed and set aside and the matters of caste verification of the petitioners stand remitted to the concerned Caste Scrutiny Committees.
(2) The Caste Scrutiny Committees shall proceed to adjudicate upon the caste claims of the respective petitioners in accordance with provisions of the said Act and Rules.
(3) We direct the Caste Scrutity ::: Downloaded on - 09/06/2013 18:37:04 :::
37 wp2016.12-tupe.doc Committees to pass appropriate orders as expeditiously as possible.
(4) We make it clear that we have made no adjudication on the caste claims of the respective petitioners.
(5) We direct that till disposal of the caste claims by the Scrutiny Committees, no coercive action shall be initiated against the concerned petitioners on the ground that they have not produced caste validity certificates.
(6) The writ petitions are partly allowed on the above terms with no order as to costs.
Sd/- Sd/-
[SUNIL P. DESHMUKH, J.] [A.S. OKA, J.]
sut/MAY12
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