Gujarat High Court
Priyankkumar Hamirbhai Galchar vs Commissioner, on 8 April, 2019
Equivalent citations: AIRONLINE 2019 GUJ 146, (2019) 2 GUJ LH 471
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/139/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 139 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20191 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20215 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20216 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20218 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20219 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20220 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20223 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20224 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20225 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20226 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20227 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20230 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20231 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20232 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20233 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20234 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20318 of 2018
With
Page 1 of 59
C/SCA/139/2018 CAV JUDGMENT
R/SPECIAL CIVIL APPLICATION NO. 21051 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 21081 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 589 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI : Sd/
=======================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
=======================================================
PRIYANKKUMAR HAMIRBHAI GALCHAR
Versus
COMMISSIONER, & 2 other(s)
=======================================================
Appearance:
Special Civil Application No.138/2018 :
MR SN SHELAT, Sr. Adv. with KETAN D SHAH(1356) for the
Petitioner(s) No. 1
MR PK JANI AAG with MS SHRUTI PATHAK AGP(1) for the
Respondent(s) No. 1,2,3
Special Civil Application No.20191, 20215, 20216,
20218, 20219, 20220, 20223, 20224, 20225, 20226, 20227,
20230, 20231, 20232, 20233, 20234, 20318, 21051, 21081
OF 2018 & Special Civil Application 589 OF 2019 :
MR KETAN D SHAH(1356) for the Petitioner(s) No. 1
MR PK JANI AAG with MS SHRUTI PATHAK AGP(1) for the
Respondent(s) No. 1,2,3
=======================================================
Page 2 of 59
C/SCA/139/2018 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 08/04/2019
CAV JUDGMENT
1. These petitions are filed under Article 226 of the Constitution of India. The issue involved in all these petitions is almost similar and, therefore with the consent of learned advocates appearing for the parties, all these petitions are heard together and are being decided by this common judgment.
2. For the sake of convenience, the facts stated in Special Civil Application No.139/2018 and Special Civil Application No.20215/2018 are considered and both these petitions are treated as lead matters.
3. Facts of Special Civil Application No.139/2018.
3.1 It is stated that the petitioner belongs to Rabari Community hailing from Gir, Barda and Alech Forest area. The Hon'ble President of India has declared the said community of the said area as "Scheduled Tribe" vide Notification dated 29.10.1956. The father of the petitioner was conferred with the status of "Scheduled Tribe" on 06.06.1979 by the concerned authority at Junagadh. Thereafter, Page 3 of 59 C/SCA/139/2018 CAV JUDGMENT the petitioner applied in the year 2006 for obtaining caste certificate in his name. It is stated that the concerned Taluka Level Committee, which is authorized to issue certificate, decided to give status of "Scheduled Tribe" to the petitioner and, thereafter, the caste certificate bearing No.1860/06 dated 11.07.2006 was issued in favour of the petitioner.
3.2 It is further stated that the petitioner appeared in the examination held by Gujarat Public Service Commission (GPSC) for the post of Class - I & II and he has cleared the said examination. It is stated that on the basis of some representation received from the concerned Scheduled Tribes Association, the caste certificate of the petitioner is under the process of scrutiny by the Scrutiny Committee of the respondent - State. 3.3 It is further stated that the concerned respondent authority has issued notice to the petitioner on 18.11.2017, by which, the petitioner is asked to remain present before the authority along with necessary documents Page 4 of 59 C/SCA/139/2018 CAV JUDGMENT in support of the caste certificate issued in his favour. The petitioner remained present on 28.11.2017 and requested to provide adverse material against him, however, the said material was not provided to the petitioner and, thereafter, notice dated 20.12.2017 is issued to the petitioner to remain present on 09.01.2018 before the Scrutiny Committee.
3.4 Therefore, the petitioner has preferred present petition, in which, the petitioner has prayed that the notices dated 20.12.2017 and 18.11.2017 issued by the concerned respondents be set aside. The petitioner has also prayed that the direction be issued to the respondent authority to decide; (1) authority letter; (2) application demanding information; (3) preliminary objection application sent by the petitioner on 16.12.2017; and (4) the application dated 29.12.2017 submitted by the petitioner. It is further prayed that the respondent be directed to carry out scrutiny if it is permissible in accordance with the direction Page 5 of 59 C/SCA/139/2018 CAV JUDGMENT issued by the Hon'ble Supreme Court in case of Kum. Madhuri Patil & Anr. Vs. Addl. Commissioner, Tribal Development, Thane & Ors., reported in AIR 1995 SC 94 and the instructions dated 21.01.2010 issued by the State Government.
4. Facts of Special Civil Application No.20215/2018.
4.1 In this petition, the petitioner has stated that he belongs to Rabari community hailing from Gir, Barda and Alech Forest Area. The Hon'ble President of India has issued notice dated 29.10.1956, whereby the aforesaid community is included in the Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 1976. It is submitted that the petitioner had applied before the concerned Mamlatdar for obtaining caste certificate. Along with the said application, the petitioner submitted required documents including Vigat Darshak Card of his grandfather. After considering the documentary evidence, the Taluka Level Committee, Jam Jodhpur had decided to issue caste certificate to the petitioner and, thereafter, the caste certificate is issued Page 6 of 59 C/SCA/139/2018 CAV JUDGMENT to the petitioner on 08.05.2008. It is further stated that the petitioner appeared in 12th Standard examination in Science stream conducted by the concerned Board in March, 2018 and he was declared successful and, thereafter, the petitioner appeared in the examination conducted by the competent authority in May, 2018. The said examination is known as National Eligibility cum Entrance Test (NEET). In the said examination, he is declared successful. It is stated that the petitioner intended to study in MBBS course in reserved category. Therefore, the petitioner applied for the same and got admission in the said course. The petitioner is studying at PDU College, Rajkot. 4.2 It is stated that the concerned petitioner filed Writ Petition (PIL) No.135/2018 before the Division Bench of this Court, wherein the concerned petitioner has prayed for various reliefs seeking direction to the concerned respondent to strictly scrutinize / verify the caste certificates of the candidates belonging to Rabari, Bharwad and Charan Page 7 of 59 C/SCA/139/2018 CAV JUDGMENT community. The petitioner has referred to the reliefs as prayed for in the said PIL in the memo of present petition. It is stated that thereafter though the Division Bench of this Court has not passed any order, the State Government made statement before the Division Bench that it has constituted Vigilance Cell to scrutinize the correctness of the caste certificate produced by the students in support of the application to seek admission in medical stream. Therefore, the Division Bench of this Court has recorded such statement in the order dated 19.07.2018 and directed the respondents to file affidavit. 4.3 It is submitted that pursuant to the aforesaid exercise, now the Vigilance Cell has carried out investigation and, thereafter, submitted report dated 29.08.2018 and on the basis of it, notice dated 06.12.2018 came to be issued by the Scrutiny Committee, by which, the petitioner was asked to remain present with documentary evidence. The petitioner has also challenged the Resolution dated 03.04.2018 and, thereafter Page 8 of 59 C/SCA/139/2018 CAV JUDGMENT at the time of hearing of this petition, on 28.01.2019, by way of amendment, the petitioner has challenged the Resolutions dated 28.05.2010 and 15.02.2018 passed by the respondent authorities.
5. Heard learned Senior Counsel, Mr. S.N. Shelat appearing with learned advocate, Mr. Ketan D. Shah for the petitioner in Special Civil Application No.139/2018, learned advocate, Mr. Ketan D. Shah for the petitioners in rest of the matters and learned AAG Mr. P.K. Jani appearing with learned AGP Ms. Shruti Pathak in all matters..
6. Learned Senior Counsel, Mr. S.N. Shelat has mainly raised following contentions, 6.1 The impugned notices dated 18.11.2017 and 20.12.2017 are vague and the same are being issued after a period of 11 years from the date of issuance of the caste certificate in favour of the petitioner and, therefore on this ground alone, the impugned notices be set aside. It is submitted that prior to 2006, there were circulars issued by the State Government in the year 1994 and 2005, in which, the procedure for issuance of the Page 9 of 59 C/SCA/139/2018 CAV JUDGMENT caste certificate is prescribed. The caste certificate issued in favour of the petitioner is in accordance with such circulars and, therefore, the issuance of the notices by the Scrutiny Committee on the basis of the Circular dated 21.01.2010, are required to be set aside.
6.2 The impugned notices are issued by the Scrutiny Committee without investigation in respect of the certificate dated 11.07.2006 and, therefore, the Scrutiny Committee is not authorized to issue such notices. It is stated that no inquiry can be initiated on the allegation leveled by the concerned association without providing any proof that the caste certificate issued in favour of the petitioner and others are doubtful. 6.3 The father of the petitioner was granted scheduled tribe certificate and is working in BSNL. The certificate of the father of the petitioner was verified by the Collector in 1998 and, thereafter, when the petitioner applied for the same, same was once again verified on 06.07.2006, therefore now at this Page 10 of 59 C/SCA/139/2018 CAV JUDGMENT stage, such certificate cannot be doubted. It is also contended that the petitioner applied for the certificate and, thereafter, the competent committee has considered the application of the petitioner and after scrutinizing the documentary evidence, the concerned authority issued the certificate. Therefore at this belated stage, the exercise carried out by the respondent - Scrutiny Committee is not permissible.
6.4 In a judgment in case of Rajvirbha Dadbha Gadhvi Vs. Director Social Welfare Department & Ors. of this Hon'ble Court delivered in Letters Patent Appeal No.163/2006, the Division Bench of this Court passed an order on 03.10.2013 and observed in Paragraph No.8 that the complaint should be on the basis of the misrepresentation or the suppression of fact, which could have resulted in initiation of verification of social status. The notice does not express any shred of doubt that the certificate was obtained by misrepresentation or on the basis of the forged or bogus documents. Thus in the present case, notice Page 11 of 59 C/SCA/139/2018 CAV JUDGMENT issued by the Scrutiny Committee be set aside.
6.5 The competent committee while issuing caste certificate in favour of the petitioner had taken into consideration the relevant Resolution dated 29.03.2005, which provides for definition of the word "parents". The certificate was issued on the basis of the caste certificate of the father/ blood relations, Vigat Darshak Card and Maswadi receipt. Therefore, the Scrutiny Committee at this stage is not competent to scrutinize the caste certificate of the petitioner on the basis of the Resolution, which was issued in the year 2010.
6.6 Notice issued by the Scrutiny Committee is without jurisdiction as no verification is envisaged. The notice is also violative of scheme as laid down by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (Supra). 6.7 The petition under Article 226 of the Constitution of India is maintainable even at the stage of issuance of the show cause notice in certain circumstances and even in Page 12 of 59 C/SCA/139/2018 CAV JUDGMENT case of alternative remedy available with the petitioner, writ petition can be entertained.
7. In support of the aforesaid contentions, learned Senior Counsel, Mr. S.N. Shelat has placed reliance upon the following decisions, (1) Judgment in case of Rajvirbha Dadbha Gadhvi Vs. Director Social Welfare Department & Ors. of this Hon'ble Court delivered in Letters Patent Appeal No.163/2006;
(2) Judgment in case of State of Punjab & Ors.
Vs. Bhatinda District Cooperative Milk Producers Union Ltd., reported in (2007) 11 SCC 363;
(3) Judgment in case of Lokayukta, Justice Ripusudan Dayal (Retired) & Ors. Vs. State of Madhya Pradesh & Ors., reported in (2014) 4 SCC 473;
(4) Judgment in case of State of H.P. & Ors.
Gujarat Ambuja Cement Ltd. & Anr., reported in AIR 2005 SC 3936;
(5) Judgment in case of Oryx Fisheries Pvt. Ltd.
Vs. Union of India & Ors., reported in (2010) 13 SCC 427;
(6) Judgment in case of State of U.P. & Ors. Vs. Saroj Kumar Sinha, reported in AIR 2010 SC 3131;
8. Learned advocate, Mr. Ketan D. Shah appearing for the petitioner of Special Civil Application No.20215/2018 and allied matters has mainly raised Page 13 of 59 C/SCA/139/2018 CAV JUDGMENT following contentions, 8.1 In the present petition, the respondent authorities have not filed any affidavitin reply and, therefore in absence of any counter affidavit filed by the respondents, the contentions raised by the petitioner in the petition be accepted by this Court. 8.2 The constitution of the Vigilance Cell by the respondent - State is not as per the decision rendered by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (Supra).
8.3 Even the constitution of the Scrutiny Committee is not as per the decision rendered by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (Supra).
8.4 As per the Resolution dated 20.07.2000 and 28.05.2010, only doubtful caste certificate can be verified, whereas in the present case, looking to the notice impugned in the present petition, it is clear that it is for the first time, the Vigilance Cell has come to a conclusion that the caste certificate of the petitioner is doubtful. Thus, when the respondent authorities have started the Page 14 of 59 C/SCA/139/2018 CAV JUDGMENT process of verification, the same was not considered as doubtful. Therefore, the procedure adopted by the respondent authorities in initiating the process of verification of the caste certificate of the petitioner is violative of the aforesaid Resolutions.
8.5 The caste certificate of the petitioner is being verified after a period of 10 years and the report is supplied to the petitioner after a period of 100 days. There is no explanation of delay of 10 years in initiation of the procedure of the verification and even in issuing the show cause notice.
8.6 The respondent - Vigilance Cell has not decided the preliminary objection submitted by the petitioner. It is stated that the petitioner has raised preliminary objection dated 18.07.2018 before the Vigilance Cell. 8.7 With regard to the maintainability of the present petition under Article 226 of the Constitution of India, it is contended that when there is abuse of process of law, the Page 15 of 59 C/SCA/139/2018 CAV JUDGMENT petition at any stage is maintainable and if the procedure is premature and violating the consolidated instructions dated 20.01.2010, the petition can be entertained at any stage. It is further contended that if the procedure is unlawful and against the decision rendered by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (Supra), the petition can be entertained.
8.8 Learned advocate, Mr. Shah has also contended on merits and tried to point out as to how the caste certificate issued by the Taluka Level Committee in favour of the petitioner is legal and valid and, thereafter, submitted that when the competent authority has issued caste certificate after verification of the documents submitted by the petitioner including Vigat Darshak Card, the exercise carried out by the respondent authority once again for scrutiny of the caste certificate of the petitioner is not permissible. 8.9 The respondent - Vigilance Cell is supposed to form an opinion and it is not permissible to recommend for cancellation of the caste Page 16 of 59 C/SCA/139/2018 CAV JUDGMENT certificate.
9. In support of the aforesaid contentions, learned advocate, Mr. Ketan D. Shah has placed reliance upon the following decisions, (1) Judgment in case of Kum. Madhuri Patil & Anr.
Vs. Addl. Commissioner, Tribal Development, Thane & Ors., reported in AIR 1995 SC 94; (2) Judgment in case of Gayatrilaxmi Bapurao Nagpure Vs. State of Maharashtra & Ors., reported in (1996) 3 SCC 685;
(3) Judgment in case of Baswant Vs. State of Maharashtra & Ors., reported in (2007) 12 SCC 800;
(4) Judgment in case of GM India Bank Vs. R. Rani & Anr., reported in (2007) 12 SCC 796; (5) Judgment in case of Jaywant Dilip Pawar Vs. State of Maharashtra & Ors., delivered in Civil Appeal No.2336/2011;
(6) Judgment in case of Anand Vs. Committee for Scrutiny and Verification of Tribe Claims & Ors., reported in (2012) 1 SCC 113; (7) Judgment in case of Sayanna Vs. State of Maharashtra & Ors., reported in (2009) 10 SCC 268;
(8) Judgment in case of Babubha Lakhansinh Panchaliya Vs. State of Gujarat & Ors. of this Court delivered in Special Civil Application No.1981/2011;
(9) Judgment in case of Anita Atmaram Gaikwad Vs. State of Maharashtra & Ors., delivered by the Page 17 of 59 C/SCA/139/2018 CAV JUDGMENT Hon'ble Supreme Court in Special Leave Petition No.23081/2011;
(10) Judgment in case of Amruta Vijay More Vs. State of Maharashtra & Ors., delivered by the Hon'ble Supreme Court in Civil Appeal No.7230/2011;
(11) Judgment in case of Jayant Shantilal Sanghvi Vs. State of Gujarat, reported in AIR 2019 GUJ 32;
(12) Judgment in case of State of Punjab & Ors.
Vs. Bhatinda District Cooperative Milk Producers Union Ltd., reported in (2007) 11 SCC 363;
(13) Judgment in case of Habibbhai Rajubhai Sindhi Muslaman Vs. State of Gujarat & Ors., reported in 2001 (4) GLR 3715;
(14) Judgment in case of Rameshchandra Kakaram Sharma Vs. State of Gujarat & Ors. of this Court delivered in Special Civil Application No.11480/2000;
(15) Judgment in case of E.I. Dupot India Pvt.
Ltd. Vs. State of Gujarat & Anr. of this Court delivered in Special Civil Application No.18319/2007;
(16) Judgment in case of Kishankumar Balubhai Garsar Vs. Collector, Jamnagar & Ors., of this Court delivered in 2007 (2) GLH 305; (17) Judgment in case of Rabari Jitendrakumar Arjanbhai Vs. Dean of this Court delivered in Special Civil Application No.4593/1999;
10. Learned advocate, Mr. Ketan Dave has also placed Page 18 of 59 C/SCA/139/2018 CAV JUDGMENT on record other judgments of the Bombay High Court and other High Courts with separate compilation.
11. On the other hand, learned Additional Advocate General, Mr. P.K. Jani appearing with learned AGP Ms. Shruti Pathak has vehemently opposed these petitions and pointed out following aspects, 11.1 The writ petitions are filed at premature stage and some petitions are at the stage of issuance of only notice, by which, the petitioners are merely called upon to submit necessary documents. Thus the notices are issued to the petitioners to call upon them to remain present with necessary documents and, therefore, no prejudice is caused to the petitioners. Thus, the present petitions are not maintainable at the stage of issuance of the notice. It appears that the petitioners are trying to avoid verification process and the respondent - State is duty bound to conduct inquiry so as to weed away false caste certificate. No decision is till date taken by the Scrutiny Committee for cancelling the caste certificate issued in favour of the petitioners and, therefore, Page 19 of 59 C/SCA/139/2018 CAV JUDGMENT this Court may not entertain these petitions. 11.2 That Preamble and relevant provision of the Constitution of India provide that the State is empowered to make any special provision for advancement of socially and educationally backward class or for the Scheduled Caste/ Scheduled Tribe including in relation to their admission to educational institutions. The Hon'ble President of India is empowered to declare and notify the tribes and tribal communities as Scheduled Tribe in relation to particular State.
11.3 After referring to the relevant provision of Constitution of India, it is contended that these provisions are made to see that the scheduled tribes are brought into main stream and they have equal rights in governance and administration of country. However, the respondent - State came to know that these special provisions, which are made for such disadvantaged group of persons, are sought to be taken advantage by some persons posing themselves persons belonging to scheduled tribe and some individuals and group of Page 20 of 59 C/SCA/139/2018 CAV JUDGMENT persons, who are otherwise not falling under the category of scheduled tribe, have got certificate of scheduled tribes and on the basis of the same, they have taken or are seeking benefit in the category of the scheduled tribes. Thus the respondent State Government is undertaking the exercise with the objective laid down by the Constitution of India and this exercise will be carried out without any bias, in accordance with the principles of the natural justice and during the said exercise, fair opportunity will be provided to all concerned.
11.4 The Vigilance Cell constituted by the respondent - State is as per the decision rendered by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (Supra). Learned AAG has referred to the Resolutions dated 15.02.2018 and 31.03.2018 issued by the respondent - State. After referring to the said Resolutions, it is contended that the Vigilance Cell is fact finding committee for determination of the status of the scheduled caste/ scheduled tribe, which is a complex Page 21 of 59 C/SCA/139/2018 CAV JUDGMENT issue and the process of inquiry involves detailed study of material facts of diverse nature, wherein detail facts as also complicated legal issue need to be addressed. For that purpose, the State Government thought it fit to include the Legal Officer. For the purpose of verification of the land records and other details, the Mamlatdar/ Deputy Mamlatdar is a considerable help in finding out relevant material, which is difficult for the Police Officer and Research Officer to collect. Thus, the Vigilance Cell constituted by the respondent - State is not in violation of the directions issued by the Hon'ble Supreme Court. In fact, as per the said directions, minimum number of the members referred to in the said decision are appointed in the Vigilance Cell and then, over and above the minimum number other members are appointed with a view to assist the Police Officers.
11.5 Similarly, the constitution of the Scrutiny Committee is also not in violation of the direction issued by the Hon'ble Supreme Court Page 22 of 59 C/SCA/139/2018 CAV JUDGMENT in the aforesaid decision.
11.6 With respect of quorum of the Committee, the State Government has now issued Notification dated 31.01.2019 clarifying that appropriate quorum of the committee will be of (1) Additional or Joint or Deputy Secretary, Tribal Development Department, Sachivalaya, Gandhinagar; (2) Commissioner, Tribal Development, Gandhinagar; and (3) Regional Research Officer, Tribal Research & Training Institute, Gujarat Vidhhyapith, Ahmedabad. Thus the aforesaid three members would form the quorum in light of the guidelines laid down by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (supra).
11.7 The State Level Vigilance Cell or the Scrutiny Committee does not loose its power to scrutinize the cases, where the caste certificates are doubtful. Even if the caste certificate is issued by the Taluka Level Committee, such caste certificate can be verified and scrutinized by the aforesaid committee.
11.8 Vigat Darshak Card cannot be taken as a Page 23 of 59 C/SCA/139/2018 CAV JUDGMENT conclusive proof to grant caste certificate. Therefore at the stage of issuance of the caste certificate, it is not final document, which is taken into consideration. Various other documents such as Maswadi receipt, family tree, revenue records and residence proof are also required to be taken into consideration.
11.9 The issue of Affinity Test or any other issues are to be raised before the Scrutiny Committee while undertaking procedure of verification of the caste certificate and, therefore, this Court may not examine the aforesaid issues on merits in the present petition.
11.10 In case of those petitioners, who have cleared GPSC examination, Akhil Gujarat Adivasi Samaj (Saurashtra), Junagadh and the Panchmahal Dahod and Mahisagar, JillaAdivasi Samaj Seva Sangathan, Ahmedabad have made representations to the State Government and, therefore, the Secretary, Tribal Development Department forwarded the representation to the Scrutiny Committee to look into the Page 24 of 59 C/SCA/139/2018 CAV JUDGMENT matter. In the aforesaid representation, it is specifically alleged that the caste certificate issued in favour of the candidates, list of which is annexed with the representation, are doubtful. Thus the Scrutiny Committee has merely issued notices to the concerned candidates/ petitioners and asked them to remain present with necessary documents. Thus the impugned notices challenged in Special Civil Application No.139/2018 are even not a show cause notice but notice calling upon the petitioners to remain present with certain documentary evidence. Thus the petition is premature. At this stage, it is pointed out that out of 23 candidates, who have cleared GPSC examination for Class - I & II posts, for which, scrutiny of the caste certificate was undertaken, certificates of 9 candidates were held valid, whereas the caste certificate of one candidate is under scrutiny of the Vigilance Cell and 13 candidates have approached this Court by way of group of petitions, wherein this Court has granted interim relief in Page 25 of 59 C/SCA/139/2018 CAV JUDGMENT their favour.
12. In support of the aforesaid contentions, learned AAG, Mr. Jani has placed reliance upon the following decisions, (1) Judgment in case of Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, reported in (1997) 5 SCC 437;
(2) Judgment in case of Director of Tribal Welfare Vs. Laveti Giri, reported in (1997) 4 SCC 271;
(3) Judgment in case of Union of India Vs. Polar Marmo Aggloerates Ltd., reported in 1997 (96) ELT 21;
(4) Judgment in case of Air India Ltd. Vs. M. Yogeshwar Raj, reported in (2000) 5 SCC 467; (5) Judgment in case of Trade Tax Officer, Saharanpur Vs. Royal Trading Co., reported in (2000) 11 SCC 518;
(6) Judgment in case of Union of India Vs. Kenesetty Satyanarayana, reported in (2006) 12 SCC 28;
(7) Judgment in case of Arshad Jamil Vs. State of Uttarakhand, reported in (2011) 9 SCC 313;
13. Having heard learned advocates appearing for the respective parties and having gone through the material produced on record, it has emerged that in Special Civil Application No.139/2018, the petitioner has challenged the notice issued by the Scrutiny Committee, whereas in Special Civil Page 26 of 59 C/SCA/139/2018 CAV JUDGMENT Application No.20215/2018 and allied matters, the petitioners have challenged the notices issued to them by Scrutiny committee. They have also challenged the Resolutions dated 28.05.2010 and 15.02.2018.
14. The preliminary objection is raised by learned AAG, Mr. Jani about the maintainability of the present petitions as the petitions are filed at the stage of issuance of the notice and, therefore, the aforesaid issue is required to be decided first.
15. In a judgment in case of Lokayukta, Justice Ripusudan Dayal (Retired) & Ors. Vs. State of Madhya Pradesh & Ors., reported in (2014) 4 SCC 473, the Hon'ble Supreme Court in Paragraph Nos.35, 36, 37, 41 and 42 has observed as under, "35. Mr. C.D. Singh, learned counsel appearing for Respondent No.4, by drawing our attention to the relief prayed for and of the fact that quashing relates to letters on various dates wherein after pointing out the notice of breach of privilege received from the members of Madhya Pradesh Assembly sought comments/opinion within seven days for consideration of the Hon'ble Speaker, submitted that the proper course would be to submit their response Page 27 of 59 C/SCA/139/2018 CAV JUDGMENT and writ petition under Article 32 of the Constitution of India is not maintainable.
36. Mr. Venugopal, learned senior counsel for the petitioners submitted that as the impugned proceedings which are mere letters calling for response as they relate to breach of privilege, amount to violation of rights under Article 21 of the Constitution, hence, the present writ petition is maintainable. In support of his claim, he referred to various decisions of this Court.
37. There is no dispute that all the impugned proceedings or notices/letters/complaints made by various members of the Madhya Pradesh Assembly claimed that the writ petitioners violated the privilege of the House. Ultimately, if their replies are not acceptable, the petitioners have no other remedy except to face the consequence, namely, action under Madhya Pradesh Vidhan Sabha Procedure and Conduct of Business Rules, 1964. If any decision is taken by the House, the petitioners may not be in a position to challenge the same effectively before the court of law. In The Bengal Immunity Company Limited vs. The State of Bihar and Others, [1955] 2 SCR 603, seven Hon'ble Judges of this Court accepted similar writ petition.
47. It is clear from the above decisions that if it is established that the proposed Page 28 of 59 C/SCA/139/2018 CAV JUDGMENT actions are not permissible involving infringement of Articles 14 and 21 of the Constitution, this Court is well within its power to pass appropriate order in exercise of its jurisdiction under Articles 32 and 142 of the Constitution. Further, if the petitioners are compelled to face the privilege proceedings before the Vidhan Sabha, it would cause prejudice to them. Further, if the petitioners are compelled to face the privilege motion in spite of the fact that no proceeding was initiated against Hon'ble Speaker or Members of the House but only relating to the officers in respect of contractual matters, if urgent intervention is not sought for by exercising extraordinary jurisdiction, undoubtedly, it would cause prejudice to the petitioners.
48. Accordingly, we reject the preliminary objection raised by the counsel for Respondent No.4 and hold that writ petition under Article 32 is maintainable."
16. In a judgment in case of Oryx Fisheries Pvt. Ltd.
Vs. Union of India & Ors., reported in (2010) 13 SCC 427, the Hon'ble Supreme Court in Paragraph No.31 has observed and held as under, "It is of course true that the show cause notice cannot be read hypertechnically Page 29 of 59 C/SCA/139/2018 CAV JUDGMENT and it is well settled that it is to be read reasonably. But one thing is clear that while reading a showcause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a showcause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence."
17. In a judgment in case of State of Punjab & Ors.
Vs. Bhatinda District Cooperative Milk Producers Union Ltd., reported in (2007) 11 SCC 363, the Hon'ble Supreme Court in Paragraph No.23 has observed as under, "The question as to what would be the reasonable period did not fall for consideration therein. The binding precedent of this Court, some of which had been referred to us hereto before, had not Page 30 of 59 C/SCA/139/2018 CAV JUDGMENT been considered. The counsel appearing for the parties were remiss in bringing the same to the notice of this Court.
Furthermore, from a perusal of the impugned notice dated 492006, it is apparent that the Revisional Authority did not assign any reason as to why such a notice was being issued after a period of 5½ years."
18. In a judgment in case of State of H.P. & Ors. Vs. Gujarat Ambuja Cement Ltd. & Anr., reported in AIR 2005 SC 3936, the Hon'ble Supreme Court has held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
19. The Division Bench of this Court in a judgment in case of Rajvirbha Dadbha Gadhvi Vs. Director Social Welfare Department & Ors. of this Hon'ble Court delivered in Letters Patent Appeal Page 31 of 59 C/SCA/139/2018 CAV JUDGMENT No.163/2006 has observed in Paragraph No.8 as under, "8. The approach of the concerned respondent in calling upon the appellants to produce the relevant documentary evidence so as to verify their social status certificate in absence of any complaint by anyone is wholly unjustified and contrary to the established and well settled canons of law. No complaint or grievance was raised before the authority concerned that the appellants have obtained their respective social status certificates on the basis of misrepresentation or suppression of facts and therefore the authorities concerned could not have initiated the exercise of verification of social status certificates of the appellants. Even in this exercise of verification of caste certificates of the appellants, the authorities concerned could not have called upon the appellants to produce the documentary evidence to re assert that they belonged to Scheduled Tribe. It is pertinent to note at this stage that even the notices calling upon the appellants to produce the evidence of their origin nowhere expresses a shred of doubt that the appellants had obtained the respective caste certificates by misrepresentation, suppression of facts or on the basis of forged or bogus documents. Page 32 of 59 C/SCA/139/2018 CAV JUDGMENT
Therefore, the approach and the conduct of the concerned respondents in calling upon the appellants to produce the documentary evidence as to their origin is wholly uncalled for and unwarranted."
20. In a judgment in case of State of Uttar Pradesh VS. Brahm Datta Sharma, reported in (1987) 2 SCC 179, the Hon'ble Supreme Court in Paragraph No.9 has observed as under, "9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that would be premature. The High Court in our opinion ought not to have interfered with the show cause notice."
21. In a judgment in case of Union of India Vs. Polar Page 33 of 59 C/SCA/139/2018 CAV JUDGMENT Marmo Aggloerates Ltd., reported in 1997 (96) ELT 21, the Hon'ble Supreme Court in Paragraph Nos.3 and 4 has observed as under, "3. We find that the question involved is a question of fact, "Whether the properties and characteristics of agglomerated marble remain the same as those of excavated marble?" We find that the High Court has gone into questions of fact to resolve this question. The resolution of questions of fact such as this should, we think, be best left to the fact finding authorities constituted under the relevant statute. The High Court should not have interfered, in a writ petition, at the stage of the show cause notice to take over that fact finding investigation.
4 At the stage when special leave was
granted by this Court the excise
authorities were permitted to proceed with the assessment but not to enforce the assessment order without permission. We are told that an assessment order has accordingly been passed on 1681994. It is the case of the respondents that the assessment order was passed without giving to them the opportunity of a hearing. This is disputed. We do not propose to go into the correctness or otherwise of this case. it is enough to say that it is in the Page 34 of 59 C/SCA/139/2018 CAV JUDGMENT interest of justice that that assessment order should stand cancelled and that the Assistant Collector of Excise concerned should give to the respondents the opportunity of a hearing and then pass a fresh assessment order. Needless to say. it shall be open to the respondents to challenge the same, if so, advised. It will be open to the respondents to place before the Assistant Collector such evidence as they may deem fit and such evidence shall be considered before the assessment order is made. We direct the respondents to appear before the Assistant Collector on 24th October, 1994 at 12.00 noon. In the event that that date and time does not suit the Assistant Collector, he shah intimate to the respondents a fresh date on that day. The Asstt. Collector shah pass the assessment order without reference to the judgment of the High Court and his earner assessment orders. Nor shall he take anything that we have said 1n this order s as reflecting on the merits."
22. In a judgment in case of Air India Ltd. Vs. M. Yogeshwar Raj, reported in (2000) 5 SCC 467, the Hon'ble Supreme Court in Paragraph No.10 has observed as under, "10. It appears from a copy of the writ petition that the respondent has not Page 35 of 59 C/SCA/139/2018 CAV JUDGMENT questioned the jurisdiction of the Disciplinary Authority to issue the impugned Show Cause Notice. The two issues of the respondent's caste and whether he had adequately explained the production of the bogus certificate of 41098 are yet to be decided by the Disciplinary Authority. Both the issues are primarily issues of fact. The High Court should not have preempted a factual decision of the disciplinary authority on the issues. Nor should the High Court have stayed the proceedings on a prima facie finding on the subjectmatter of enquiry particularly when the competence of the Disciplinary Authority was not in doubt."
23. In a judgment in case of Trade Tax Officer, Saharanpur Vs. Royal Trading Co., reported in (2005) 11 SCC 518, the Hon'ble Supreme Court in Paragraph No.1 has observed as under, 1 These appeals are against the judgement of the Allahabad High Court dated 21.01.2000. The respondent Company were clearing their goods on the basis that they were leather sheets within the meaning of Sec. 14 of the Central Sales Tax Act. A showcausc notice was issued to them claiming that the items cleared by them were not leather sheets and that a higher duty was required to be paid. The respondents filed a writ petition Page 36 of 59 C/SCA/139/2018 CAV JUDGMENT challenging the issuance of the showcause notice. The High Court 1gnoring the well settled law that against a mere issuance of a showcause notice a court should be reluctant to interfere, purported to go into the facts and quashed the showcause notice in a mechanical way. In our view the approach of the High Court was entirely wrong. All that had been done was that a show cause was issued. After the respondents filed their reply, the notice may have been dropped or if the reply was not satisfactory based on the reply further inquiries could have been made by the appellants. Adjudication proceedings must not be stalled in the manner done by the High Court.
24. In a judgment in case of Union of India Vs. Kenesetty Satyanarayana, reported in (2006) 12 SCC 28, the Hon'ble Supreme Court in Paragraph Nos.14 and 15 has observed as under, "14. The reason why ordinarily a writ petition should not be entertained against a mere showcause notice or chargesheet is that at that stage the writ petition may be held to be premature. A mere chargesheet or showcause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same Page 37 of 59 C/SCA/139/2018 CAV JUDGMENT has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the showcause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice or chargesheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a showcause notice or charge sheet."
25. In a judgment in case of Arshad Jamil Vs. State of Uttarakhand, reported in (2011) 9 SCC 313, the Hon'ble Supreme Court in Paragraph Nos.30 and 31 has observed as under, "30. The High Court, where the validity of the order passed by the Tahsildar on 02.03.2005 was challenged, considered the contentions raised by the appellant, but dismissed the writ petition holding that the appellant cannot get the benefit of Other Backward Classes status in the State Page 38 of 59 C/SCA/139/2018 CAV JUDGMENT of Uttarakhand as he is a permanent resident of Muzaffarnagar, U.P. The High Court has also recorded a finding that the appellant obtained a false certificate of being a resident of Roorkee, District Haridwar, Uttarakhand.
31. Although, the power and the jurisdiction of this Court in the matter of re appreciation of evidence is restricted and also keeping in mind the wellsettled principles that the scope of judicial review of administrative action is very restricted and limited and, therefore, we should be slow in interfering with the finding of facts arrived at by the High Court, we still looked into the entire records and the documents relied upon in order to satisfy ourselves that the action taken by the respondentState in cancelling the certificate of the appellant is legal, just and proper."
26. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as Division Bench of this Court, it can be said that when the show cause notice is issued to the concerned person, ordinarily he must place his case before the authority concerned by showing cause and the Court should be reluctant to interfere with the notice at that stage unless the notice is shown to have Page 39 of 59 C/SCA/139/2018 CAV JUDGMENT been issued without any authority of law. The purpose of issuance of show cause notice is to offer opportunity of hearing to the concerned person and once the cause is shown, it is open to the concerned authority to consider the matter in light of the facts and the submissions placed by the concerned person and only thereafter, final decision in the matter could be taken. The interference by the Court before that would be premature. It is further revealed that the High Court should not entertain the writ petition at the stage of issuance of the show cause notice as the High Court is not fact finding authority.
27. From the aforesaid decisions, it can be further said that reason why ordinarily writ petition should not be entertained at the stage of mere issuance of show cause notice or the chargesheet is that at that stage, writ petition may be held to be premature or mere chargesheet or show cause notice does not give rise to give any cause of action because it does not amount to an adverse order, which affects the right of any party. It is quite possible that after considering the reply to the show cause notice or after holding an inquiry, Page 40 of 59 C/SCA/139/2018 CAV JUDGMENT authority concerned may drop the proceeding and hold that the charges are not established. The writ petition lies when some rights of any party are infringed. Further, mere show cause notice does not infringe the right of anyone. The writ jurisdiction is discretionary jurisdiction and, hence, such discretion under Article 226 of the Constitution of India should not ordinarily be exercised by quashing the show cause notice.
28. Keeping in view the aforesaid principles of law laid down by the Hon'ble Supreme Court, if the facts of the present case as discussed hereinabove are examined, it is revealed that in Special Civil Application No.139/2018, Scrutiny Committee has issued notice to the petitioner calling upon him to produce documentary evidence and at that stage, the present petition is filed. At this stage, it is to be recalled that the representation is received by the respondent - State from the concerned association, in which, specific allegations are leveled against the concerned candidates that the caste certificate obtained by such candidates are doubtful. On the basis of the said complaint received by way of representation, Page 41 of 59 C/SCA/139/2018 CAV JUDGMENT the matter is referred to the Scrutiny Committee, which in turn has issued impugned notice to the petitioner. Therefore, this Court is of the view that the present petition is premature and no rights of the petitioner are infringed or violated. It is required to be noted that learned AAG has specifically contended that out of 23 candidates, who have cleared GPSC examination for the post of Class - I & II, whose certificates are questioned by the concerned Association, after scrutiny of the caste certificate, the certificates of 9 candidates were held valid, whereas the caste certificate of 1 candidate is under scrutiny of Vigilance Cell and remaining 13 candidates have approached this Court by filing petitions, in which, this Court has granted interim relief in their favour. Thus from the aforesaid material, it is revealed that the certificate of 9 candidates are held valid by the Scrutiny Committee and, therefore, there is no reason for the petitioners to approach before this Court challenging the issuance of the notice. The petitioner can certainly point out from the documentary evidence that the caste certificate Page 42 of 59 C/SCA/139/2018 CAV JUDGMENT issued in his favour is legal and valid. The respondent - Scrutiny Committee has given reasonable opportunity of hearing to the petitioners and till date, no decision is taken by the Committee and, therefore, this Court is not inclined to exercise the discretionary jurisdiction in favour of the petitioners.
29. The contention of learned advocates for the petitioners that the constitution of the Vigilance Cell and the Scrutiny Committee is not as per the decision rendered by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (supra). With a view to consider the aforesaid submissions, relevant observations made in the decision rendered by the Hon'ble Supreme Court in case of Kum. Madhuri Patil (supra) is required to be considered and more particularly, Para Nos.12(4), 12(5) & 12(6) of the Hon'ble Supreme Court read as under, "12(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 Page 43 of 59 C/SCA/139/2018 CAV JUDGMENT 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. 12(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 Page 44 of 59 C/SCA/139/2018 CAV JUDGMENT 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. 12(6) The Director concerned, on receipt of the report from 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 Page 45 of 59 C/SCA/139/2018 CAV JUDGMENT 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."
30. By issuing Resolution dated 15.02.2018, the respondent - State has constituted committee. The 4 members of the Vigilance Cell are as under, (1) Deputy Superintendent of Police; (2) Police Inspector;
(3) Director - Tribal Research and Training
Institution; and
(4) Deputy Mamlatdar.
31. Thereafter, another committee is constituted vide Resolution dated 03.04.2018, in which, following are the members, (1) Deputy Superintendent of Police; (2) Police Inspector;
(3) Director - Tribal Research and Training Institution;
(4) Deputy Mamlatdar; Page 46 of 59 C/SCA/139/2018 CAV JUDGMENT (5) Legal Assistant; and (6) Tribal Development Officer (TDO)
32. Thus from the aforesaid material, it is revealed that merely because some more members are added into Vigilance Cell, that does not mean that the constitution of such committee is in violation of the directions issued by the Hon'ble Supreme Court. It is specifically contended by learned AAG that the Vigilance Cell is fact finding committee for determination of the status of schedule tribe, which is a complex issue and the process of inquiry involves detailed study. It also involves legal issues, which are to be addressed. For the said purpose, State Government thought it fit to include the Legal Officer. It is also specifically contended on behalf of the respondent that for the purpose of verification of the land records and other details, the Mamlatdar/ Deputy Mamlatdar is a considerable help in finding out relevant material, which is difficult for the Police Officer and Research Officer to collect. Thus the respondent - State thought it fit to constitute the Vigilance Cell, which includes the Legal Assistance and Deputy Mamlatdar. In that view of Page 47 of 59 C/SCA/139/2018 CAV JUDGMENT the matter, the contention raised by the learned advocates appearing for the petitioners, is not accepted.
33. Similarly, so far as the constitution of the Scrutiny Committee is concerned, it is revealed from the Government Resolution dated 28.05.2010 that following were the members in the Scrutiny Committee, (1) Additional or Joint or Deputy Secretary, Tribal Development Department, Sachivalaya, Gandhinagar;
(2) Commissioner, Tribal Development,
Gandhinagar; and
(3) Director, Tribal Research & Training
Institute, Gujarat Vidhyapith,
Ahmedabad;
(4) Deputy Commissioner, Commissioner of
Tribal Development Department,
Gandhinagar;
(5) Sector Officer, Tribal Development
Department, Sachivalaya, Gandhinagar. Thereafter vide Resolution dated 15.02.2018, the Director of Tribal Research & Training Institute, Gujarat Vidhyapith, Ahmedabad was replaced with Regional Research Officer, Tribal Research & Training Institute, Gujarat Vidhyapith, Ahmedabad. It is contended by learned AAG that the Page 48 of 59 C/SCA/139/2018 CAV JUDGMENT modification in the said Resolution was carried out to help proper verification conducted by the Vigilance Cell and also to see that the guidelines laid down in case of Kum. Madhuri Patil (supra) are complied with.
By Notification dated 31.01.2019, now it is clarified that proper quorum of the Committee will be of three members i.e., (1) Additional or Joint or Deputy Secretary, Tribal Development Department, Sachivalaya, Gandhinagar;
(2) Commissioner, Tribal Development, Gandhinagar; and (3) Regional Research Officer, Tribal Research & Training Institute, Gujarat Vidhhyapith, Ahmedabad.
34. Thus from the aforesaid material, it is clear that the constitution of the Scrutiny Committee is not in violation of the decisions rendered by the Hon'ble Supreme Court as contended by learned advocates for the petitioners. Thus this Court is of the view that when the Vigilance Cell and the Scrutiny Committee are validly constituted, the petitioners can point out their case before the concerned Committee on the basis of the documentary evidence, which is in their Page 49 of 59 C/SCA/139/2018 CAV JUDGMENT possession. The issue with regard to the Affinity Test, Vigat Darshak Card and the certificate issued in favour of the father or forefather or near relatives of the concerned petitioners can be pointed out by the petitioners before the concerned Committee and this Court is not fact finding authority to decide as to whether the concerned petitioner is holding valid caste certificate or not.
35. It is also required to be noted that in almost all the decisions upon which reliance is placed by learned advocates for the petitioners, the decision was taken by the concerned committee to cancel the caste certificate issued in favour of the concerned person or concerned authority denied to issue caste certificate in favour of the concerned person and, therefore, the petitions were filed before the concerned High Courts or before the Hon'ble Supreme Court and while deciding the issue of cancellation of the caste certificate or denial of issuance of the caste certificate, the observations were made by the concerned High Court or the Hon'ble Supreme Court. Whereas in the present case, as discussed Page 50 of 59 C/SCA/139/2018 CAV JUDGMENT hereinabove, notices are issued to the petitioners calling upon the petitioners to produce the documentary evidence and, therefore, the decision upon which the reliance is placed by learned advocate for the petitioners, would not render any assistance to them.
36. In Special Civil Application No.20215/2018, contention is raised that the Vigilance Cell has submitted report, on the basis of which, now the Scrutiny Committee has issued notice to the petitioner and the procedure is not properly followed by the Vigilance Cell. However, this Court is of the view that this contention can be raised before the Scrutiny Committee also, which can decide the issue after verifying the record and the material which may be placed by the petitioner before the Scrutiny Committee. It is not in dispute that till date, the caste certificate in favour of the petitioners of Special Civil Application No.20215/2018 and allied matters is not cancelled by the Scrutiny Committee and, therefore, the petitioner can raise all contentions before the Scrutiny Committee, hence, the present petition is not maintainable. Page 51 of 59 C/SCA/139/2018 CAV JUDGMENT
37. This Court is conscious of the fact that alternative remedy is no bar for exercising jurisdiction under Article 226 of the Constitution of India and the writ petition is maintainable under certain circumstances such as, (1) when there is violation of principles of natural justice;
(2) when the fundamental rights of the petitioner are violated;
(3) if the order is passed by the authority without jurisdiction; and (4) vires of the provision of the enactment is challenged.
38. In the present case, as discussed hereinabove, the petitioners have failed to satisfy this Court that their case falls under any of the above clauses. Further when the notices are issued to the petitioners calling upon them to produce documentary evidence, at this stage, these petitions are not required to be entertained.
39. Learned advocate for the petitioners have referred to relevant instructions and Resolutions issued by the respondent - State and pointed out that in case of complaint only, the process of verification of the caste certificate can be initiated, whereas in the present case, no such Page 52 of 59 C/SCA/139/2018 CAV JUDGMENT complaint is received by the respondent - State. With regard to such contention, it is required to be observed that for GPSC passed candidate i.e. the petitioner of Special Civil Application No.139/2018, the representations were made by the concerned association as stated hereinabove, wherein doubt is raised against the caste certificate obtained by the petitioner and other 22 persons and, therefore on the basis of such complaint, the respondent authorities have initiated process for verification. Whereas so far as the Special Civil Application No.20215/2018 and other allied matters are concerned, it has come on record that Writ Petition (PIL) No.135/2018 is filed by Samast Adivasi Samaj before the Division Bench of this Court and in the said PIL, various allegations were leveled against the persons, who have obtained caste certificates and on the basis of which, such candidates are claiming admission in MBBS course and other courses. In the said petition, the respondent - State has filed an affidavit and, thereafter, additional affidavit is also filed, copy of which is produced on Page No.244 of the compilation of Special Civil Page 53 of 59 C/SCA/139/2018 CAV JUDGMENT Application No.20215/2018. From the details mentioned in the said affidavit, it is clear that with reference to the admission in the medical course, verification of caste certificate of 609 of aspiring candidates, who applied for admission under reserved category and scheduled tribe was entrusted to the Vigilance Cell by the Gujarat State Scrutiny Committee for different zone and such committees were constituted and out of verification of 609 caste certificates, as per the report submitted by the Vigilance Cell, caste certificates of 393 candidates are found to be in order, whereas 24 cases were pending with the Vigilance Cell for want of relevant documents and the report of the Vigilance Cell of 5 candidates is returned by the Scrutiny Committee for further inquiry. 24 candidates have informed that they are not taking any admission in the medical course and, therefore, their caste certificates have not been verified by the Vigilance Cell, however out of 609 cases, only for 49 candidates, whose caste certificates are not found in order, the Scrutiny Committee has issued notices to the concerned candidates forwarding the Vigilance Cell report Page 54 of 59 C/SCA/139/2018 CAV JUDGMENT and asked such candidates to produce any evidence/ information supporting their caste certificates to be in order. Thus from the aforesaid details, it is clear that in pursuance to the Writ Petition (PIL) filed before this Hon'ble Court by the concerned petitioners, the respondent - State has started exercise for verification of the caste certificate of scheduled tribe for such candidates, who are interested in taking admission in MBBS course. Thus this Court is of the considered view that the initiation of the process of verification of the caste certificate by the Vigilance Cell and/or Scrutiny Committee cannot be interfered with in the aforesaid facts and circumstances of the present case.
40. At this stage, it is also required to be noted that it is the specific contention of the learned AAG, Mr. Jani on the basis of the preamble of constitution and on the basis of Articles 15(4) and 16(4), Articles 342, 366(25), 388(A), 330 and 332 of the Constitution of India that such provisions are made in the Constitution to see that scheduled tribes are brought in the main stream and they have equal rights in governance Page 55 of 59 C/SCA/139/2018 CAV JUDGMENT and the administration of the country. However it has come to the knowledge of the State that these special provisions, which are made for such groups, are said to be taken by such persons posing themselves belonging to scheduled tribe. Some persons, who are otherwise not falling under the scheduled tribe have got certificates of scheduled tribe and on the basis of same, they have taken or are seeking benefit in category of scheduled tribe and, therefore, when such complaints are received, the respondent - State has with a view to protect the interest of scheduled tribe persons, started aforesaid process for reverfiication of the caste certificate issued in favour of the concerned persons. Therefore keeping in view the constitutional goal, when the State authorities have initiated process of verification of the caste certificates of the concerned persons, such exercise is not required to be interfered with by this Court while exercising powers under Article 226 of the Constitution of India.
41. It is contended by learned advocate for the petitioners that the respondent - State has not Page 56 of 59 C/SCA/139/2018 CAV JUDGMENT filed affidavit in the present petitions and, therefore, the case put forward by the petitioners be accepted by this Court. However the said contention is misconceived. The preliminary objection is raised by learned AAG about the maintainability of the present petitions against the issuance of the notice and during the course of hearing, learned AAG appearing for the respondent - State pointed out from the record itself as to why the respondent - State has initiated process of verification of the caste certificate and how the constitution of the Vigilance Cell as well as Scrutiny Committee is legal and valid.
42. The petitioners have also challenged the Resolutions dated 28.05.2010 and 15.02.2018 at belated stage by way of amendment at the time of final hearing of these petitions. This Court has gone through the said resolutions. It is required to be noted that on one hand, learned advocate for the petitioners has placed reliance upon the Resolution dated 28.05.2010 by contending that only doubtful caste certificates can be verified. Whereas in the present case, looking to the notice Page 57 of 59 C/SCA/139/2018 CAV JUDGMENT impugned in the petition, it is for the first time, the Vigilance Cell has come to a conclusion that the caste certificate of the petitioner is doubtful. Now on the other hand, the petitioner has at belated stage submitted the said Resolution dated 28.05.2010 is illegal and in valid. However from the material produced on record and from the contents of the said resolutions, this Court is of the view that both these resolutions are not against the decisions rendered by the Hon'ble Supreme Court of India Kum. Madhuri Patil (Supra). Thus there is no substance in the submissions canvassed by learned advocate for the petitioners.
43. In view of the aforesaid discussion, these petitions are dismissed. However, the respondent - Scrutiny Committee is hereby directed to give reasonable opportunity of hearing to the petitioners and after considering their reply and documents that may be produced by them, the Scrutiny Committee shall take appropriate decision in accordance with law. It is clarified that this Court has not gone into the issue as to whether the caste certificate issued in favour of the present petitioners by the concerned authority at Page 58 of 59 C/SCA/139/2018 CAV JUDGMENT the relevant time are duly issued or not. Therefore, the respondent shall decide the issue without being influenced by the observations made by this Court in the present order. Notice is discharged. Interim relief, granted earlier, stands vacated.
Sd/ (VIPUL M. PANCHOLI, J.) FURTHER ORDER After the judgment is pronounced, learned counsel appearing for the petitioners requested that interim relief granted earlier be extended for a period of four weeks so that the petitioners can approach the higher forum.
However, in view of the reasoning recorded by this Court in the present judgment, request is rejected.
Sd/ (VIPUL M. PANCHOLI, J.) Gautam Page 59 of 59