Bombay High Court
Shri Vijay Kisan Karanjkar vs The State Of Maharashtra And Ors. on 27 June, 2003
Equivalent citations: AIR2004BOM60, 2004(1)BOMCR168, 2004(3)MHLJ49, AIR 2004 BOMBAY 60, (2003) 4 ALLMR 691 (BOM), 2003 (4) ALL MR 691, (2004) 3 MAH LJ 49, (2004) 1 BOM CR 168
Author: C.K. Thakker
Bench: C.K. Thakker, V.K. Tahilramani
JUDGMENT C.K. Thakker, C.J.
1. Rule, Mr. R.M. Patne, Assistant Government Pleader, appears and waives service of notice of Rule on behalf of respondent Nos. 1 to 5. Mr. V.A. Thorat, Senior Advocate instructed by Mr. R.K. Mendadkar with Suresh S. Shah, appears and waives service of notice of Rule on behalf of respondent No. 6.
2. We have heard the learned counsel for the parties and at their request, the matter is taken for final hearing.
3. The petitioner has filed the present petition for quashing and setting aside the decision of the Caste Certificate Scrutiny Committee, Nasik, respondent No. 3 herein, dated May 12, 2003 (Exhibit-F) being illegal, unlawful and violative of natural justice and fair play.
4. The case of the petitioner is that he belongs to Kunbi caste, recognized as Other Backward Class (OBC). Election of Bhagur Nagar Parishad was held on December 2, 2001. The petitioner contested the election as OBC candidate (Kunbi) an got himself elected as the President by securing maximum votes. According to the petitioner, respondent No. 6 was his political rival who made a complaint that the petitioner did not belong to OBC and, hence, could not have contested the election in reserved category. On the basis of the said complaint, an inquiry was held by the Collector, Nasik and the case was referred to the Caste Certificate Scrutiny Committee. The petitioner was called upon the furnish relevant documents to prove his caste claim. The petitioner produced the relevant documents in support of his claim. The Committee, however, by the order impugned in the petition, negatived the claim of the petitioner holding that he did not belong to Kunbi (OBC) and invalidated the certificate issued by the Sub-Divisional Officer, Nasik. The petitioner, therefore, has approached this Court.
5. Several contentions were raised by the learned counsel for the petitioner contending that the Certificate issued in favour of the petitioner as belonging to Kunbi (Other Backward Class) had been rightly issued and could not have been cancelled by the Caste Certificate Scrutiny Committee. In our opinion, however, it is not necessary to enter into larger question since on one ground, the petition deserves to be allowed and the order passed by the Committee deserves to be quashed and set aside.
6. The learned counsel for the petitioner submitted that the petitioner has asserted in the petition that though the order impugned in the present petition was passed by a Committee of three members, hearing was afforded to the petitioner only by two members. The action taken against the petitioner disqualifying him and invalidating the certificate is, therefore, illegal, unlawful and deserves to be quashed.
7. In this connection, our attention was invited by the learned counsel for the petitioner to a decision of the Apex Court in Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development, Thane and Ors: . In para 13. Their Lordships issued certain directions. The relevant part of para 13 reads as under:
"The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Caste 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 social status certificates, their scrutiny and their approval, which may be the following:
(1) ... ... ...
(2) ... ... ...
(3) ... ... ...
(4) All the State Governments shall constitute a Committee of three officers. namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director Social Welfare/Tribal Welfare/Backward Class Welfare as the case may be, 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) to (15) ... ... ...".
8. It was submitted by the learned counsel for the petitioner that the State Government was directed to constitute a Committee of three members mentioned therein. In compliance with the said direction, the State of Maharashtra did constitute a Committee of three members. It was incumbent on the said Committee (of three members) to afford hearing and to decide the case. Since the hearing was afforded only by two members and the order was passed by three members and singed by Committee consisting of three members, it is not in consnance with the directions of the Supreme Court and is liable to be quashed.
9. The learned Assistant Government Pleader, on the other hand, supported the order passed by the Committee. Relying on the affidavit filed by the Member Secretary, Caste Scrutiny Divisional Committee, Nashik Division, Nashik, he submitted that the action was legal and valid.
10. In para 2, the deponent has stated:
"I say that it is true that hearing on two days i.e. 16.4.2003 and 7.5.2003 were taken place before the two members of the Scrutiny Committee and the impugned order was issued by all the three members. However, proceeding could not be vitiated as per Government Resolution dated 25.1.2000".
11. Reference was made by the deponent to the Government Resolution dated 25th January, 2000. Para 3 of the said Resolution in Marathi reads as under:
vuqlwfpr tkrh] foeqDr tkrh] HkVD;k tekrh] brj ekxkloxZ o fo'ks"k ekxklizoxZ lanHkkZr fu.kZ; /ks.;klkBh izR;sd lquko.khP;k eqdk[krhP;k osdh nksu lnL;kaph x.kewrhZ vko';d jkBhy- tkrhph oSFkrk izek.ki=s gh ojhy frUgh vf/kdkU;kaP;k lgk/;kus dk;kZy;kP;k f'kD;k&fu'kh fuxZfey dqj.ks vko';ad vkgs
12. Translated in English, it lay down that quorum of two members will be sufficient at the time of hearing. In the instant case, admittedly two members had afforded hearing to the petitioner and both of them were present. It is, therefore, in consonance with the above circular and the action taken cannot be held illegal or unlawful, submitted the learned Assistant Government Pleader.
13. Our attention was invited by the learned Assistant Government Pleader as well as by the learned counsel appearing for contesting respondent No. 6 to the provisions of substantive law i.e. Maharashtra Scheduled Caste Scheduled Tribes Denotified Tribes (Vimukta Jatis). Nomadic Tribes. Other Backward Classes or Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001) (hereinafter referred to as "the Act"). Clause (k) of Section 2 defines "Scrutiny Committee" as a committee constituted under Sub-section (1) of Section 6 of the Act. Section 6(1) requires the Government to constitute Scrutiny Committee(s). The said Section reads thus:
"(1) The Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committees 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 Backwards Classes or Special Backward Category for the purposes mentioned in Section 3 may make an application, well in time in such form and in 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 of 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 obtained such certificate.
(4) the Scrutiny Committee shall follow such procedure for verification of the Caste Certificates and adhere to the time limit for verification and grant of validity certificate, as prescribed."
14. Sub-section (2) of Section 7 attaches finality to the order passed by the Scrutiny Committee under the Act subject to challenge in the High Court under Article 226 of the Constitution of India. Section 15 bars jurisdiction of Civil Courts. Section 19 confers power on the State Government to remove difficulties.
15. Now, so far as constitution of Committee is concerned, Sub-section (1) of Section 6 of the Act, enjoins the State Government to constitute one or more Committees for verification of Caste Certificates. Moreover, in Kumari Madhuri Patil, the Apex Court has issued a clear direction to all State Governments to constitute such Committees. It is, therefore, not open to the respondents to contend that constitution of Committee is not compulsory and it is for the State to constitute or not to constitute such Committee(s).
16. It is, no doubt, true as submitted by the learned counsel for the respondent No. 6 that the Act does not provide minimum number of members in such Committees. It is, therefore urged that it is open to the State Government to constitute a Committee or Committees of two or three members and no fault can be found against constitution of such Committee(s). Moreover, in the instant case, quorum of two members is prescribed in Government Resolution itself. The validity of the said resolution has not been challenged by the petitioner and, hence, hearing afforded by two members to the petitioner cannot be objected and the decision cannot be held illegal on that ground.
17. We are not impressed by the said contention. True it is that the Act does not prescribe minimum number of members in Scrutiny Committee(s). But direction No. 4 in Kumari Madhuri Patil explicitly mandates all State Governments to constitute a Committee of three members. ("All the State Governments shall constitute a committee of three members"). It is thus, incumbent on every State Government to constitute a committee of three members and the submission of the respondents that such committee may be of two members cannot be accepted.
18. It was also contended that third member would be necessary only in case of verification of cases of Schedule Caste or Schedule Tribe having intimate knowledge in verification and issuance of Social Status Certificate (S/C); or in identifying the tribes, tribal communities, parts or groups of tribes or tribal communities(S/T). The provision as to third member has no application to other Backward Class (OBC). In the present case, the Committee was called upon to consider the case of the petitioner who claimed to belong to Kunbi community (OBC) and a Committee of two members cannot be said to be defective.
19. Even this argument has not impressed us. As already seen earlier, the Supreme Court has issued direction to constitute Committees of three members and the said direction has to be complied with. But even otherwise, the question is more or less academic in nature as the State of Maharashtra has not constituted separate Committees for Schedule Caste (three members), Schedule Tribe (three members) and Other Backward Class (two members). Had there been separate and independent Committees, such an argument could have been advanced. But in absence thereof, the Caste Certificate Scrutiny Committee was required to consider the cases of candidates placed before it.
20. In our considered opinion, when there were three members, and the order was passed by all the three members, all of them ought to have afforded hearing to the petitioner, challenge to Government Resolution is, to us, immaterial in the light of factual situation before us. Hence, the action taken by the Committee of affording hearing by two members and passing an order by three members cannot be upheld or approved and must be set aside.
21. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed. The order passed by the Caste Certificate Scrutiny Committee on May 12, 2003 is hereby quashed and set aside and it is directed that all the three members of the Committee will reconsider the case of the petitioner after affording hearing to him afresh and pass appropriate order in accordance with law.
22. Since the matter pertains to elected office of the President of Nagar Parishad, it would be appropriate if we direct the Committee to take appropriate decision as expeditiously as possible preferably within six weeks from today. It is open to the parties to produce additional evidence. All proceedings will be finalized within that time Parties will appear before the Committee on 2nd July, 2003.
We may hasten to add that we may not be understood to have expressed any opinion on merits of the matter. As and when the matter will be placed before the Caste Certificate Scrutiny Committee, it will be decided without being influenced by observations made by us hereinabove. All questions are kept open.
Parties be given copies of this order duly authenticated by Sheristedar /Personal Secretary of this Court.