Madhya Pradesh High Court
Jaipal Singh vs The State Of Madhya Pradesh on 1 May, 2019
Equivalent citations: AIRONLINE 2019 MP 370
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others)
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Writ Petition No.7047/2013
.........Petitioner: Jaipal Singh
Versus
.......Respondents : State of M.P. & Ors.
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Shri V.K. Bhardwaj, Senior Advocate with Shri S.S. Gautam, Counsel for
the petitioner.
Shri Sankalp Sharma, Government Advocate for the respondents/State.
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Date of hearing : 25/04/2019
Date of order : 01/05/2019
Whether approved for reporting: Yes
ORDER
(01/05/2019) This petition under Article 226 of the Constitution of India has been filed against the order dated 16-9-2013 passed by State High Power Caste Scrutiny Committee, by which the Scheduled Caste Certificate dated 6-11-2008, issued in favour of the petitioner has been cancelled.
2. This Court by order dated 9-10-2013, had rejected I.A. No. 7572/2013, which was an application for stay of impugned order dated 16-9-2013. Being aggrieved by the order of the Co-ordinate Bench, the petitioner had filed a Writ Appeal No.502/2013, and the interim order dated 9-10-2013 was set aside, and W.A. No.502/2013 was allowed and the impugned order dated 16-9-2013 was stayed. Thus, by virtue of order 2 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) dated 25-10-2013, the effect and operation of impugned order dated 16-9- 2013 has been stayed.
3. Before considering the facts of the case, it would be appropriate to consider I.A. No.635/2019 filed by one Ladduram Kori, through his Counsel Shri N.S. Kirar, Advocate seeking permission to intervene. The application has been opposed by the petitioner, on the ground that he is not an aggrieved person. In reply, it is submitted by the Counsel for the intervenor that as per the guidelines dated 8-9-1997, a public notice is also required to be given by the High Power Caste Scrutiny Committee, therefore, any person can oppose the claim of the petitioner. During the arguments, it was submitted by the Counsel for the Petitioner, that Shri N.S. Kirar, Advocate, should not appear for the intervenor, as earlier Shri N.S. Kirar, Advocate had appeared on behalf of the State and he had access to the record of the Committee. The objection raised by the Counsel for the petitioner was opposed by Shri N.S. Kirar, Advocate. However, Shri N.S. Kirar did not dispute that earlier in the capacity of Govt. Advocate, he had an access to the record of the High Power Caste Scrutiny Committee. After some heated arguments, the Counsel for the petitioner, agreed that he would not raise the preliminary objection with regard to the appearance of Shri N.S. Kirar, and Shri N.S. Kirar, also agreed not to argue on behalf of the intervenor. Accordingly, I.A. No. 635/2019 for intervention is hereby dismissed.
4. By order dated 6-12-2018, this Court had imposed the cost of Rs.20,000/- on the respondents. The office report dated 11-1-2019 3 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) (wrongly mentioned as 11-1-2018) shows that the cost was not deposited by 11-1-2019. The receipt of the cost has also not been placed on record. Thus, it is not clear that whether the respondents have deposited the cost of Rs.20,000/- after 11-1-2019 or not. Accordingly, this Court by order dated 18-2-2019 had observed that since, the cost has not been deposited therefore, the right of the respondent to defend the writ petition stands forfeited. However, by the same order, the Counsel for respondent/State was directed to produce the record of the Scrutiny Committee positively on the next date of hearing. On 12-3-2019, the entire record pertaining to the High Power Caste Scrutiny Committee was available with the Counsel for the State and since, there was an interim order staying the effect and operation of Annexure P/10 dated 16-9-2013, therefore, it was observed that it would be appropriate to hear the matter at an early date and accordingly, the office was directed to list the case for hearing on any Thursday in the month of April.
5. In spite of the clear direction of this Court, the office listed this case on 22-4-2019 (i.e., on Monday), therefore, this Court directed the office to list this case on 25-4-2019 (i.e., on Last Thursday of the month of April) and the Counsel for the State was directed to keep the original record of the proceedings available at the time of final hearing.
6. The case was taken up for hearing on 25-4-2019, then a statement was made by the Counsel for the State, that the original record is not available. The Co-ordinate Bench of this Court had already observed on 12-3-2019 that the entire record of the Committee is available with the 4 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Govt. Advocate, and since, the interim order is in operation, therefore, the matter shall be heard finally, and on 22-4-2019, the Counsel for the State was specifically directed to keep the record of the Committee available at the time of final hearing, but still the record of the Committee has not been produced. Surprisingly, when the record of the Committee was available on 12-3-2019 (as observed by Co-ordinate Bench in its order), then why the record is not being produced, is also not known. At this stage, it is submitted by the Counsel for the State that although the right to defend the writ petition has already been forfeited due to non-deposit of the cost, but the documents of proceedings of the Committee, filed along with the writ petition may be considered. Accordingly, the documents pertaining to the proceedings of the Committee filed along with the return of the State shall be considered.
7. Thus, it is made clear that only the documents annexed with the Writ Petition, Rejoinder and documents pertaining to the proceedings of the Committee, which have been annexed with the Return, shall be taken into consideration. Further, only those documents, which are the part of return shall be taken into consideration, which would be referred by the Petitioner.
8. Challenging the order dated 16-9-2013, it is submitted by the Counsel for the petitioner, that earlier, the Petitioner was granted a Caste Certificate dated 2-12-1999, thereby certifying that the petitioner belongs to "OBC". In the month of December, 1999, the office of President, Municipal Council, Ashoknagar was reserved for "OBC" category and the 5 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) petitioner had also contested the said election on the strength of "OBC" certificate dated 2-12-1999, whereas on Baijnath Sahu, had also contested the election. It appears, the petitioner defeated Baijnath Sahu in the election for the post of President, Municipal Council, Ashoknagar. Baijnath Sahu, filed a writ petition No.1330/2012 before the High Court, seeking the following relief(s) :
(i) That, the respondents be directed to initiate criminal proceedings under Section 420,467,405 and 468 of the Indian Penal Code against respondent no.4 for procuring forged certificate and accordingly, he be punished.
(ii) That, the respondent no.4 be held not qualified to hold the office of the President Municipal Council, Ashoknagar reserved for "OBC" category and he be directed to vacate such office forthwith.
(iii) That, the respondent no.4 be directed to pay a heavy cost for holding office of President, Municipality Ashok Nagar for which he is not qualified.
(iv) Other relief doing justice in the matter including cost be ordered.
9. The Petition filed by Baijnath Sahu, was disposed of by this Court by order dated 12-8-2002, which reads as under :
"The grievance in this Public Interest Litigation is that respondent no.4 has been elected as President of the Municipal Council, Ashoknagar on false and fabricated caste-certificate. It is not disputed that an election-petition against respondent no.4 and a writ petition before the learned Single Judge in respect of election of respondent no.4 is also pending. However, the petitioner, who is also a lost candidate can submit objections in the election- petition and also before the Writ Court. That apart, remedy as provided under the Government Circular dated 1-8-1996, a copy of which is annexed with the writ petition as Annexure P/10, provides for enquiry and taking action in respect of the forged caste- certificate, was not availed of by the petitioner. The 6 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Petitioner, in case, if makes any complaint under the afaoresaid Circular of the Governmentthe Competent Authority can take action in that regard and decide the same expeditiously.
This Public Interest Litigation is disposed of with the directions made hereinabove".
10. Thereafter, it appears that the matter was taken up by the High Power Caste Scrutiny Committee and by order dated 23-2-2004, the "OBC" certificate dated 2-12-1999 issued in favour of the petitioner was cancelled.
11. The Petitioner filed a Writ Petition No.520/2004, challenging the order dated 23-2-2004, which was allowed by this Court by order dated 3-9-2004 on the ground of lack of quorum and the matter was remanded back to the High Power Caste Scrutiny Committee for decision afresh.
12. The matter was again considered by the High Power Caste Scrutiny Committee and by order dated 11-11-2004, the "OBC" Caste Certificate of the petitioner was cancelled.
13. Accordingly, by order dated 4-3-2004, the Directorate Backward Class and Minority Welfare, Bhopal, cancelled the "OBC" certificate dated 2-12-1999 which was granted by the Tahsildar in favour of the Petitioner.
14. It appears that thereafter, the petitioner once again obtained the certificate of Scheduled Caste on 6-11-2008 (Annexure P/8).
15. By referring to the return filed by the respondents, it is submitted by the Counsel for the Petitioner that it appears that one Ramesh Kumar Itoria, Member District Congress Committee and Representative Member 7 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) of Parliament, made a written complaint to Shri Jyotiraditya Scindia, Minister of State for Commerce and Industry, Government of India alleging that forged Caste Certificates have been obtained by various persons, including the petitioner. Shri Jyotiraditya Scindia, Minister of State for Commerce and Industry, Government of India in his turn, by letter dated 30-9-2010, forwarded the said complaint to the then Chief Minister of State of M.P. Accordingly, the matter was referred to High Power Caste Scrutiny Committee for verification of Caste Certificate of the petitioner.
16. It appears that by order dated 6-8-2013, the High Power Caste Scrutiny Committee issued notices to the petitioner, for his appearance on 12-8-2013. It was reported by the Collector Guna, that the Sub Divisional Officer was sent to the house of the petitioner, for service of notice, however, he was not in the house. The report given by S.D.O. was also annexed according to which, the Sub-Divisional Officer, Guna received the copy of the notices on 8-8-2013 and accordingly, he went to the house of the petitioner, but he was not found in the house, and the family members informed the S.D.O., that the petitioner would be available on the next day. On 9-8-2013, when the SDO again went to the house of the petitioner, then again he was not available in the house. Again on 10-8- 2013, no one was found in the house, accordingly, the notice could not be served personally on the petitioner. Thereafter, the notice was read over to the relatives and neighbours and they were requested to inform the petitioner. One copy of the notice was affixed on the house and the 8 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) signatures of the neighbourers were obtained. The entire proceedings were got videographed. SMS was sent on the mobile of the petitioner and news was also uploaded on the Facebook account of the petitioner. News was also published in the local print and electronic media. However, on 12-8-2013, the petitioner did not appear before the High Power Caste Scrutiny Committee. Seven complainants appeared against the petitioner, and therefore, their statements were recorded.
17. However, in order to give another opportunity of hearing, the High Power Caste Scrutiny Committee, decided to issue fresh notice to the petitioner and accordingly, fresh notice was issued on 7-9-2013 for service of the same through Collector, Guna, for his appearance on 16-9- 2013. Again the Collector, Guna by his report dated 13-9-2013 informed that the notice was received by him on 12-9-2013. He and Tahsildar, Ashoknagar tried to contact the petitioner, but he was not available. Three attempts were made to serve the notice but every time, the same could not be served as the house was locked. Accordingly, the notice was read over to his relatives and neighbourers, and request was made to inform the petitioner. A copy of the notice was affixed on the house of the petitioner and panchnama was prepared. The entire efforts were videographed. SMS was also sent on the mobile phone of the petitioner and news was also uploaded on the Facebook account of the petitioner. Public notice was also given by beat of drums and news was also published in the newspaper. On 16-9-2013 also, the Petitioner did not appear before the High Power Caste Scrutiny Committee and accordingly, it was held that 9 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) the entire attempt of the petitioner is to somehow keep the matter pending and accordingly, an ex parte final order dated 16-9-2013 was passed and the Caste certificate of Scheduled Caste dated 6-11-2008 was cancelled on the ground that the same was issued on the basis of forged documents. Order dated 16-9-2013 reads as under :
e/; izns'k 'kklu vuqlwfpr tkfr dY;k.k foHkkx ¼jkT; Lrjh; vuqlwfpr tkfr izek.k&i= Nkuchu lfefr½ izdj.k Øekad & 11@2013&14 vukosnd dk uke& Jh ttiky flag firk Jh xq:est flag] v'kksduxjA fu.kZ; vkns'k&cSBd fnukad 16-09-2013 ekuuh; mPpre U;k;ky; }kjk dq0 ek/kqjh ikfVy cuke vij vk;qDr] vkfnoklh fodkl ds flfoy vihy ua- 5854@94 esa ikfjr fu.kZ; fnukad 02-09-94 ,-vkbZ-vkj- 1995 ds vuqikyu esa e/; izns'k 'kklu] lkekU; iz'kklu foHkkx ds vkns'k Øa- ,Q@1@6@vk-iz-@1 fnukad 8 flrEcj 1997 ds }kjk jkT; Lrj ij fuEukuqlkj mPPk Lrjh; Nkuchu lfefr dk xBu fd;k x;k gS&
-1- lfpo e-iz- 'kklu vuqlwfpr tkfr dY;k.k foHkkx] Hkksiky & v/;{k 2- vk;qDr vuqlwfpr tkfr fodkl e-iz- Hkksiky & lnL; lfpo 3- lapkyd vkfne tkfr vuqla/kku laLFkk e-iz- Hkksiky & lnL;
¼tkfr fo"k; fo'ks"kK½ 4- lfpo] e-iz- vuqlwfpr tkfr vk;ksx] Hkksiky & lnL;
lfefr }kjk Jh ttiky flag firk xq:est flag v'kksduxj ds ^uV^ vuqlwfpr tkfr ds lansgkLin tkfr izek.k i= ds izdj.k dh Nkuchu dh xbZA foospuk ds eq[; fcUnq fuEukuqlkj gS& 1- e/;izns'k 'kklu] vkfne tkfr rFkk vuqlwfpr tkfr dY;k.k foHkkx ds i= dzekad 2670@2531 @10@4&25] fnukad 13-12-2010 }kjk ekuuh; jkT; ea=h okf.kT; ,oa m|ksx] Hkkjr ljdkj dk i= izkIr gqvk ftlds lkFk Jh jes'k dqekj bVkSfj;k }kjk ttiky flag tTth ds vuqlwfpr tkfr izek.k i= dh] dh xbZ f'kdk;r layXu FkhA 2- dk;kZy;hu i=@vuqla/kku@udz-272@2010&11@8277 fnukad 4-1-2011 ,oa i= dzekad 9375] fnukad 3-2-2011 }kjk dze'k% dysDVj ,oa iqfyl v/kh{kd v'kksduxj dk Jh ttiky flag ds tkfr izek.k i= dh tkap gsrq izdj.k izsf"kr fd;k x;kA 3- dysDVj ftyk v'kksduxj dk i= dzekad@,l MCY;w@9&2@8@2011@375] fnukad 24-04-2012 }kjk vukosnd ds tkfr izek.k i= ds fo"k; esa vuqfoHkkxh; vf/kdkjh ¼jktLo½ v'kksduxj ls tkap djkdj izfrosnu bl dk;kZy; dks izsf"kr fd;k x;kA izfrosnu ds fu"d"kZ fuEuqlkj gS& (I) dysDVj v'kksduxj us vius i= esa izfrosfnr fd;k gS fd ^^eSa vuqfoHkkxh;10 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others) vf/kdkjh v'kksduxj ds layXu tkap izfrosnu ds vk/kkj ij mDr d`R;ksa ds fy, Jh ttiky flag ds vknru QthZ tkfr izek.k i= cuokus ds vkpj.k dks vkijkf/kd Js.kh dk gksus ls buds fo:) dBksj n.MkRed dk;Zokgh ds izLrko dks mfpr le>rk gwWA eS vuqfoHkkxh; vf/kdkjh ¼jktLo½ v'kksduxj ds tkap izfrosnu ls iw.kZr% lger gwW] rFkk vuqfoHkkxh; vf/kdkjh v'kksduxj dk layXu tkap izfrosnu fnukad 09@04@2012 dk bl izdj.k dk eq[; vax ekuk tk,A (II) vuqfoHkkxh; vf/kdkjh ds tkap izfrosnu ds eq[; fu"d"kZ fcUnq fuEukuqlkj gS& ¼d½ vukosnd dk uke] xzke fgUukSnk rglhy v'kksduxj dh Hkwfe losZ dzekad 6] jdok 1-443 gs0 ij ^^fl[k^^ ntZ gSA ¼[k½ vukosnd ds 'kS{kf.kd vfHkys[k 'kkldh; izkFkfed fo|ky; fl?kkM+k fodkl[k.M eqaxkoyh esa izos'k dzekad 145] fnukad 01-08-1969 ij d{kk 1 esa izos'k fy;k x;k gS] ftlesa tkfr fl[k fy[kkbZ x;h gSA blh vk/kkj ij vukosnd dks lekU; tkfr dk gksus ds dkj.k Nk=o`fRr dk ykHk ugh fn;k x;k gSA ¼x½ rglhynkj eqaxkoyh ds i= fnukad 26-09-2011 }kjk Jh ttiky flag ds fltjk [kkunku eSa buds ckck cw<+ flag iq= uRFkk flag ds iq= xq:est flag ds iq= ttiky flag vafdr gSA xzke fl?kkMk ds ftYn cUnkscLr 2013 esa losZ uEcj 72 ij Jh ttiky flag ds ckck cw<+ flag iq= uRFkk flag tkfr ^^fl[k^^ ntZ gSA ¼?k½ dk;kZy; izkpk;Z] 'kkldh; mRd`"V ckyd mPprj ek/;fed fo|+ky; v'kksduxj ds i= fnukad 08-04-12 ds vuqlkj LdkWyj jftLVj ds vk/kkj ij Jh ttiky flag ¼tTth) dh tkfr fl[k ntZ gSA ¼M-½ dk;kZy; dysDVj] ftyk v'kksduxj ds 'kL= ykbZlsal jftLVj dzekad 13@4 ij ttiky flag iq= xq:est flag tkfr ^^fl[k^^ lkekU; fuoklh vk'ksduxj vafdr gSA p½ dysDVj v'kksduxj }kjk ;g fu"d"kZ vafdr fd;k x;k gS fd ^^ vukosnd }kjk U;k;ky; vuqfoHkkxh; vf/kdkjh v'kksduxj ds izdj.k dzekad 31 oh&121@08&09] fnukad 06-11-2008 ls uV vuqlwfpr tkfr dk tkfr izek.k i= iw.kZ :i ls dwVjfpr voS/kkfud ,oa QthZ nLrkostksa ds vk/kkj ij izkIr fd;k x;k gS lkFk gh vukosnd pquko ds le; jktuSfrd in gkfly djus ds mn~~ns'; ls QthZ rjhds ls dwVjfpr nLrkostks ds vk/kkj ij vkj{k.k dk xyr ykHk ysus ds fy;s vko';drkuqlkj dHkh vuqlwfpr tkfr dk ,oa dHkh fiNMk oxZ dh tkfr dk izek.k i= cuokus ds vknh gS rFkk mDr tkfr izek.k i= voS/kkfud :i ls viuh jktuSfrd egRokdka{kk iw.kZ djus ds mn~~ns'; ls vuqlwfpr tkfr ds ;ksX; ,oa ik= mEehnokjksa ds vf/kdkjksa ds guu djus ds fy;s mDr d``R; fd;k x;k gSA f'kdk;r ds lanHkZ esa izkIr rF;kRed izfrosnu ds layXu nLrkostksa ls Li"V gS fd Jh ttiky flag iq= xq:est flag fuoklh iatkch dkWyksuh] fofn'kk jksM] v'kksduxj }kjk xyr] QthZ ,oa dwVjfpr tkfr izek.k i= laca/kh nLrkost izLrqr dj vuqfpr ykHk fy;k x;k gSA 4- iqfyl v/kh{kd] v'kksduxj ds i= dzekad@iq-v-@v-uxj@LVsuks@621 fnukad 13-07-2012 }kjk vukosnd ds tkfr izek.k i= dk tkp izfrosnu vk;qDr] vuqlwfpr tkfr fodkl dks izsf"kr fd;k x;kA izfrosnu ds lkFk ,l-Mh-vks-ih- }kjk dh x;h tkap ds vfHkys[k layXu gSaA izfrosnu ds fu"d"kZ fuEukuqlkj gS %& (I) vukosnd dh fltjk oa'kkoyh esa vafdr muds fjLrsnkjksa dh xzke fl?kkMk esa d`f"k Hkwfe;ka gSA [kljk vfHkys[k esa mudh tkfr fl[k ntZ gSA vukosnd ds firk ds HkknkSu dh d`f"k Hkwfe esa [kljk esa Hkh mudh tkfr fl[k ntZ gSA dysDVj v'kksduxj ds izfrosnu esa vafdr rF;ksa ds vuqlkj gh jktLo vfHkys[k esa vukosnd ,oa muds fudVre fj'rsnkjksa dh tkfr fl[k vafdr gS bldh iqf"V iqfyl v/kh{kd }kjk Hkh dh x;h gSA (II) iqfyl v/kh{kd ds izfrosnu esa vukosnd ds ,u-ih cksj jk;Qy ykbZlsal uEcj 53@4 esa tkfr fl[k ¼lkekU;½ vafdr gksus dk mYys[k fd;k x;k gSA 11 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) (III) vukosnd 'kkldh; usg: dkyst v'kksduxj ds LFkkuh; izca/k lfefr ds lnL; jg pqds gSaA ftlesa budh tkfr ^^la/kw^^ ntZ gSA o"kZ 1999 esa vukosnd }kjk dkWyst NksM+us ds izek.k i= esa viuh tkfr ^^dhj^^ fy[kkbZ x;h gSA Jh ttiky flag ds blh rjg tkfr cnyus ds dkj.k buds f[kykQ Fkkuk dksrokyh v'kksduxj esa vijk/k dzekad 161@2010] /kkjk 420] 467] 458 471] 120ch Hkknfo iathc) fd;k x;k FkkA bl vijk/k esa vfxze tekur djkus gsrq vukosnd us l= U;k;k/kh'k v'kksduxj esa izdj.k dzekad 135@2010 ^^izFke izfrHkwfr vkosnu^^ esa vius uke ds vkxs la/kw fy[kk gSsA bl ekeys esa vij l= U;k;k/kh'k v'kksduxj us vukosnd dk vfxze tekur vkosnu fujLr dj fn;k FkkA (IV) Jh ttiky flag iq= Jh xq:est flag la/kw fuoklh iathch dkyksuh vk'kksduxj dh tkfr fl[k o mitkfr la/kw gS tks fd lkekU; oxZ ds varxZr vkrh gSA vr% buds }kjk cuk;s x;s ^^dhj ,oa uV^^ tkfr ls lacaf/kr izek.k i=ksa dks fujLr fd;s tkus ,oa lacaf/kr ds f[kykQ oS/kkfud dk;Zokgh fd;s tkus dh vuq'kalk dh x;h gSA 5- Jh ttiky flag ¼tTth½ dks U;k;ky; rglhynkj v'kksduxj ds izdj.k dzekad 143 oh&121@99&2000 ds }kjk dhj tkfr vU; fiNM+k oxZ dk izek.k i= tkjh fd;k x;k FkkA bl izek.k i= i= dks fiNM+k oxZ dY;k.k dh mPp Lrjh; Nkuchu lfefr dh cSBd fnukad 11-11-2004 esa fujLr fd;k x;k gSA fiNM+k oxZ Nkuchu lfefr dk fu.kZ; bl izdkj gS %& ^^Jh ttiky flag la/kw }kjk gh iwoZ es Lo;a dks uV ¼ckthxj½ crkdj vuqlwfpr tkfr dk izek.k i= izkIr fd;k x;kA ckn esa jktuSfrd ykHk ds fy;s Lo;a dks ^^dhj^^ cukdj fiNM+k oxZ tkfr dk izek.k i= izkIr fd;k x;kA vr% Jh ttiky flag la/kw dks rglhynkj v'kksduxj }kjk iznRr ^^dhj^^ fiNM+k oxZ tkfr dk izek.k i= fujLr fd;k tkrk gSA^^ 6- eq[; dk;Zikyu vf/kdkjh tuin iapk;r v'kksduxj ds i= fnukad 07-04- 2010 }kjk Fkkuk izHkkjh v'kksduxj dks voxr djk;k x;k fd vukosnd o"kZ 1994 ds tuin iapk;r fuokZpu {ks= dzekad 15 tks vukjf{kr Fkk] ls fl[k ¼lkekU;½ ds vk/kkj ij pquko yM+s FksA e.Mh lfefr ds d`"kd lnL; ds fuokZpu gsrq vukosnd }kjk uke funsZ'ku i= fnukad 20-04-1999 dks fjVfuZx vkWfQlj e.Mh fuokZpu v'kksduxj dks izLrqr ?kks"k.kk i= esa Lo;a dks lkekU; tkfr dk ?kksf"kr fd;k x;k FkkA 7- vukosnd dks dk;kZy;hu i= dzekad@vuqla/kku@u-dz-a11@2013&14@3425 fnukad 06-08-2013 }kjk iqfyl ds ek/;e ls dh x;h tkap dk izfrosnu layXu izsf"kr djrs gq;s fnukad 12-08-2013 dks vk;ksftr Nkuchu lfefr dh cSBd esa i{k izek.kksa ds lkFk mifLFkr gksus gsrq ^^dkj.k crkvksa lwpuk i=ks^^ izsf"kr fd;k x;kA 8- mDr dkj.k crkvks lwpuk i= dh izfr dysDVj v'kksduxj dks vukosnd dks rkehy djus ds fy;s i`"Bkafdr dh x;hA lkFk gh lkekU; iz'kklu foHkkx }kjk fu/kkZfjr izfdz;kuqlkj Nkuchu lfefr dh cSBd dh lwpuk ds izpkj izlkj gsrq Hkh dysDVj dks fy[kk x;kA 9- dysDVjh] v'kksduxj }kjk muds i= fnukad 11-08-2013 ds ek/;e ls dk;kZy; dks voxr djk;k x;k fd Jh ttiky flag fuoklh iatkch eksgYyk v'kksduxj ds lwpuk i= fnukad 12-08-2013 dh rkehyh gsrq vuqfoHkkxh; vf/kdkjh] v'kksduxj dks Hkstk x;kA vukosnd ds ?kj ij miyc/k u gksus ds dkj.k O;fDr'k% rkehyh ugha gks ldhA bl i= ds lkFk vuqfoHkkxh; vf/kdkjh v'kksduxj dk i= layXu fd;k x;k] bl i= esa vuqfoHkkxh; vf/kdkjh v'kksduxj }kjk vukosnd dks lwpuk i= dh rkehyh dk dk;Zokgh fooj.k vafdr fd;k x;k gSA 10- dk;kZy; vuqfoHkkxh; vf/kdkjh v'kksduxj ds i= fnukad 11-08-2013 }kjk bl dk;kZy; dks voxr djk;k x;k fd ^^Jh ttiky flag iq= Jh xq:est 12 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) flag iatkch eksgYyk v'kksduxj ds lwpuk i= rkehy djkus gsrq fnykad 08- 08-2013 dks i= izkIr gqvkA esjs rFkk rglhynkj v'kksduxj ,oa dLck iVokjh ds lkFk uxj ikfydk eas lEidZ djus ij vukosnd ugha feysA buds ?kj Ikj igaqp dj tkudkjh izkIr djus ij crk;k x;k fd vukosndu ugha gSA og dy vkidks bZn ds ekSds ij feysxsaA fnukad 9-8-2013 dks Hkh Jh ttiky flag bZnxkg ij ugh igaqps rFkk ?kj ij Hkh ugh feysA iqu% fnukad 10-08-2013 dks vukosnd ds ?kj iatkch dkyksuh v'kksduxj ij dksbZ Hkh ugha feyk] rkyk yxk FkkA bl dkj.k Jh ttiky flag dks O;fDrxr lwpuk rkfey ugh gks ldhA mDr ifjfLFkfr esa lwpuk i= vukosnd ds iM+kslh rFkk fjLrsnkjksa ds le{k i<+dj lquk;k x;k vkSj vuqjks/k fd;k fd vukosnd dks bl laca/k esa voxr djk nsA ,d izfr ?kj ij pLik dj rkehy dh x;h] rFkk pLik fd;s tkus dk iapukek rS;kj dj mifLFkr eksgYys okfl;ksa ds gLrk{kj Hkh djk;s x;sA lEiw.kZ dk;Zokgh dh fofM;ks fjdkfMZax djk;h x;hA vukosnd ds eksckby uEcj ij ,l-,l-,l- lans'k Hkstdj Nkuchu lfefr ds le{k mifLFkr gksus gsrq vukosnd dks voxr djk;k x;k ,oa vukosnd ds Qslcqd ij Hkh lekpkj Mkyk x;kA LFkkfu; lekpkj i=ksa ,oa bysDVªkfud fefM;k esa Hkh mDr lwpuk izdkf'kr gqbZA 11- Nkuchu lfefr dh cSBd fnukad 12 vxLr 2013 dh cSBd esa vukosnd mifLFkr ugha gq;sA f'kdk;rdrkZ i{k ds lkr O;fDr mifLFkr gq;s buds }kjk fyf[kr vkosnu izLrqr fd;s x;s ,oa ,d vU; f'kdk;rdrkZ Jh jes'k ekyoh; ds dFku fyfic) fd;s x;sA leLr f'kdk;rdrkZvksa }kjk vukosnd ds }kjk izkIr fd;s x;s uV vuqlwfpr tkfr ds izek.k i= dks QthZ crk;k x;k ,oa vfHkys[k izLrqr djrs gq, izek.k i= fujLr djus dh ekax dh x;hA bu vfHkys[kksa dk mYys[k dysDVj ,oa iqfyl v/kh{kd] v'kksduxj ds izfrosnu esa fd;k tk pqdk gSA 12- Nkuchu lfefr }kjk fnukad 12-08-2013 dh cSBd esa fu.kZ; fy;k x;k fd ^^vukosnd tkucw>dj lfefr ds le{k mifLFkr gksus ls cpuk pkgrs gSaA vukosnd dks iqu% U;k;fgr esa ,d volj fn;k tk;A blds mijkUr Hkh ;fn os lfefr ds le{k mifLFkr ugha gksrs gS rks izdj.k esa ,d i{kh; fu.kZ; fy;k tk;sxkA^^ 13- Nkuchu lfefr dh cSBd fnukad 16-09-2013 dk lwpuk i= dysDVj v'kksduxj ds ek/;e ls rkehy djus gsrq dk;kZy;hu i= fnukad 07-09- 2013 dks izsf"kr fd;k x;kA dysDVj v'kksduxj ds i= fnukad 13-09- 2013 }kjk voxr djk;k x;k fd vuqfoHkkxh; vf/kdkjh v'kksduxj ds ek/;e ls vukosnd dks lwpuki= rkehyh dh dk;Zokgh dh xbZ ,oa vuqfoHkkxh; vf/kdkjh v'kksduxj dk vk;qDr vuqlwfpr tkfr fodkl dks lEcksf/kr i= fnukad 14-09-2013 Hkh layXu dj bl dk;kZy; dks izsf"kr fd;k x;kA 14- vuqfoHkkxh; vf/kdkjh v'kksduxj ds i= fnukad 14-09-2013 }kjk ;g voxr djk;k x;k gS fd ^^vukosnd dks rkehy djus gsrq lwpuki= fnukad 12-09-2013 dks izkIr gqvkA esjs rFkk rglhynkj v'kksduxj ds lkFk uxjikfydk esa lEidz djus ij vukosnd ugha feysA muds ?kj ij tkdj lwpuki= rkehy djkus ds rhu ckj iz;kl djk;s x;s fdUrq ?kj ij rkyk can gksus ds dkj.k muds iM+kSlh rFkk fj'rsnkjksa ds le{k lwpuki= i<dj lquk;k x;k vkSj muls vuqjks/k fd;k x;k fd bl lEca/k esa mUgsa voxr djk nsaA lwpuk i= dh ,d izfrb vukosnd ds ?kj ij pLik dj rkehy dh xbZA pLik fd;s tkus dk iapukek rS;kj dj mifLFkr eksgYys okfl;ksa ds Hkh gLrk{kj djok;s x;sA iwjh dk;Zokgh dh ohfM;ks fjdkfMZax djk;h xbZ gSA vukosnd ds eksckby uacj ,oa Qsl cqd ij Hkh lfefr ds le{k mifLFkr gksus gsrq voxr djk;k x;kA lkoZtfud mn~?kks"k.kk MksUMh fiVokdj djokbZ 13 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) xbZ ,oa LFkkuh; lekpkj i=ksa es Hkh bl vk'k; dh lwpuk izdkf'kr gqbZ gSA^^ 15- Nkuchu lfefr dh cSBd fnukad 16-09-2013 dks vukosnd lfefr ds le{k mifLFkr ugha gq, uk gh muds }kjk lfefr ds le{k mifLFkr u gks ikus dk dksbZ fyf[kr dkj.k izLrqr fd;k x;kA vukosnd dks nks ckj Nkuchu lfefr dh cSBdksa dh lwpuk rkehy djus dk ftyk iz'kklu }kjk lEiw.kZ iz;kl fd;k x;k ijUrq vukosnd tkucw>dj lwpuk i= izkIr ugh djuk pkgrs gSaA vr% ftyk iz'kklu }kjk vukosnd rd lwpuk igaqpkus ds ijEijkxr mik; tSls ?kj ij uksfVl pLik djuk] eksgYys okfl;ks ds le{k lwpuk i<dj lqukuk] ,oa vukosnd dks voxr djkus dk vuqjks/k djuk] lekpkj i=ksa esa lekpkj izdkf'kr djokuk] MksUMh fiVokus ds vfrfjDr vukosnd rd lwpuk igaqpkus dh vk/kqfudre rduhd ,l-,e-,l- ,oa Qslcqd ek/;eksa dk Hkh iz;ksx fd;k x;kA bu iz;klksa ds ckn Hkh vukosnd dh vksj ls Nkuchu lfefr dks fdlh Hkh izdkj dk izR;qRrj izkIr ugha gqvk gSA 16- vukosnd Jh ttiky flag tTth ds mDr joS;s ls ;g Li"V gS fd os lfefr ds le{k mifLFkr gksus ls cpuk pkgrs gS rkfd bl izdj.k dks vuko';d :i ls yfEcr j[kk tk ldsA lfefr }kjk mudh yxkrkj vuqifLFkfr ds dkj.k izdj.k esa ,d i{kh; :i ls fopkj djus dk fu.kZ; fy;k x;kA fu"d"kZ 1- vukosnd ,oa mudh fltjk oa'kkoyh esa vafdr firk] pkpk] nknk ds Hkwfe lEca/kh jktLo vfHkys[kksa esa lHkh txg tkfr ^^fl[k^^ vafdr gSA dgha ij Hkh ^uV^ vuqlwfpr tkfr vafdr ugh gSA 2- vukosnd ds 'kS{kf.kd vfHkys[kksa esa budh tkfr fl[k vafdr gS] ,oa dgh ij Hkh ^uV^ vuqlwfpr tkfr vafdr ugha gSA 3- vukosnd }kjk /kkfjr N P cksj jk;Qy yk;lsUl uEcj 53@2004 tks ftyk n.Mkf/kdkjh v'kksduxj }kjk tkjh fd;k x;k gS esa Hkh vukosnd dh tkfr fl[k ¼lkekU;½ vafdr gSA 4- jkT; Lrjh; fiNM+k oxZ Nkuchu lfefr dk fu.kZ; fnukad 11-11-2004 esa vukosnd dh tkfr ds lEca/k esa fu.kZ; fy;k x;k Fkk fd ^^Jh ttiky flag la/kw }kjk gh iwoZ esa Lo;a dks uV ¼ckthxj½ crkdj vuqlwfpr tkfr dk izek.k i= izkIr fd;k x;kA ckn esa jktuSfrd ykHk ysus ds fy, Lo;a dks ^^dhj^^ crkdj fiNM+k oxZ tkfr dk izek.k i= izkIr fd;k x;kA vr% Jh ttiky flag la/kw dks rglhynkj v'kksduxj }kjk iznRr ^dhj^ fiNM+k oxZ tkfr dk izek.k i= fujLr fd;k tkrk gSA^^ 5- Nkuchu lfefr dks dysDVj ,oa iqfyl v/kh{kd v'kksduxj ls izkIr tkap izfrosnuksa esa ,oa vU; layXu vfHkys[kksa] esa vukosnd dks ^^fl[k^^] ^la/kw^ lkekU; tkfr dk gksuk n'kkZ;k x;k gSA vukosnd ds i{k es ,slk dksbZ Hkh vfHkys[k izLrqr ugh gqvk gS tks vukosnd dks ^uV^ ckthxj vuqlwfpr tkfr izekf.kr djsA vukosnd ds fo:) lfefr ds le{k mifLFkr O;fDr;ksa }kjk Hkh nLrkosth lk{; izLrqr djrs gq, ;g crk;k x;k gS fd vukosnd vuqlwfpr tkfr dk u gksdj ^fl[k^ lkekU; tkfr dk gSaA fu.kZ;
mijksDr foospuk ds vk/kkj ij lfefr loZ lEefr ls vukosnd Jh ttiky flag firk Jh xqjest flag ds ^uV^ vuqlwfpr tkfr ds izek.k i= tks fnukad 06-11-2008 dks vuqfoHkkxh; vf/kdkjh v'kksduxj }kjk tkjh fd;k x;k Fkk ds lEca/k esa fuEu fu.kZ; ysrh gS%& 1- vuqfoHkkxh; vf/kdkjh v'kksduxj ds izdj.k dzekad 31& oh&121@8&9@fnukad 06-11-2008 ds }kjk vukosnd Jh ttiky flag dks ^uV^ vuqlwfpr tkfr dk izek.k i= dwVjfpr voS/kkfud ,oa QthZ nLrkostksa ds vk/kkj ij tkjh fd;k x;k gSA vr% ;g izek.k i= fujLr dj jktlkr fd;k tk,A 14 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) 2- vukosnd Jh ttiky flag dks voS/k rFkk QthZ :i ls vkj{k.k dk ykHk nsus ds fy, vuqlwfpr tkfr dk izek.k i= tkjh djus okys lEcaf/kr ftEesnkj vf/kdkfj;ksa ds fo:) vkijkf/kd izdj.k ,oa e/;izns'k flfoy lsok vkpj.k fu;e 1965] e-iz- flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1966 ds rgr vuq'kklukRed dk;Zokgh djus dh vuq'kalk dh tkrh gSA 3- vukosnd Jh ttiky flag ds fo:) QthZ ,oa dwV jfpr vk/kkjksa ij vuqlwfpr tkfr dk izek.k i= izkIr djus ,oa blds vk/kkj ij uxjh; fudk; pquko esa Hkkx ysus ds dkj.k buds fo:) vkijkf/kd izdj.k iathc) djus dh vuq'kalk dh tkrh gSA ¼v'kksd 'kkg½ ¼ts-,u- Hkkyikuh½ lfpo vk;qDr e/;izns'k 'kklu vuqlwfpr tkfr fodkl ,oa vuqlwfpr tkfr dY;k.k foHkkx ,oa lnL; lfpo v/;{k jkT; Lrjh; lansgkLin vuqlwfpr tkfr izek.k jkT; Lrjh; lansgkLin vuqlwfpr tkfr izek.k i= Nkuchu lfefr e/;izns'k i= Nkuchu lfefr] e/;izns'k ¼MkW th-ih- iVsy½ ¼vt; tklw½ la;qDr lapkyd lfpo ¼izfrfuf/k½ e/; izns'k jkT; vuqlwfpr tkfr vk;ksx Hkksiky vkfne tkfr vuqla/kku ,oa fodkl laLFkku Hkksiky ,oa lnL;
,oa lnL; jkT; Lrjh; lansgkLin vuqlwfpr tkfr izek.k jkT; Lrjh; lansgkLin vuqlwfpr tkfr izek.k i= Nkuchu lfefr e/;izns'k Nkuchu lfefr] e/;izns'k
18. The order dated 16-9-2013, has been challenged by the petitioner in the present petition.
19. Challenging the order dated 16-9-2013 (Annexure P/8), it is submitted by the Counsel for the petitioner, that :
i- That the complaint was politically motivated, and the findings given by the High Power Caste Scrutiny Committee are also politically motivated, as BJP was in power, whereas the petitioner belongs to Congress Party;
ii- That in the year 2004, the High Power Caste Scrutiny Committee had considered the Caste Certificate of "OBC"
and at that time, the Caste Certificate of Scheduled Caste 15 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) was also before the High Power Caste Scrutiny Committee and since, no comments against the "SC" Certificate, were made by the High Power Caste Scrutiny Committee in its final order dated 11-11-2004, therefore, it has to be presumed that the Caste Certificate of Scheduled Caste, issued in favour of the petitioner, was upheld by the High Power Caste Scrutiny Committee, therefore, the Caste Certificate of the petitioner cannot be examined again and again;
iii- There was lack of quorum as the final order has been signed by only three members out of four;
iv- No notice was served upon the petitioner;
v- Even otherwise, 15 days notice was not issued;
vi- The provisions of Order 5 C.P.C. were not followed.
20. Refuting the submissions made by the Counsel for the Petitioner, it is submitted by the Counsel for the respondents, that the petitioner has not clarified, as to how he was prejudiced by non-service of 15 days notice. Further, in fact he was duly served by substituted service of publication and in spite of that, he did not appear before the High Power Caste Scrutiny Committee. It is further submitted that the attempts made by the authorities to serve the notice, clearly shows that the petitioner was desperately avoiding the service of notice. Further, merely because the final order was not signed by one of the member would not make the order vulnerable as the said order was signed by the fourth member on a 16 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) later date. Furthermore, in the earlier proceedings before the High Power Caste Scrutiny Committee, the Caste Certificate of "OBC" was in question, therefore, it was not necessary for the High Power Caste Scrutiny Committee to make any comment on the Caste Certificate of Scheduled Caste.
21. Heard the learned Counsel for the Parties.
i- That the complaint was politically motivated, and the findings given by the High Power Caste Scrutiny Committee are also politically motivated, as BJP was in power, whereas the petitioner belongs to Congress Party.
22. By referring to the complaint of Ramesh Kumar Itoria, which has been placed on record by the respondents at page 28 of the return, it is submitted by Shri Vinod Bhardwaj, Senior Advocate that it is clear that one Ramesh Kumar Itoria, who was the member of District Congress Committee and Representative of the Member of Parliament had made a written complaint to Shri Jyotiraditya M. Scindia, who was Minister of State for Commerce and Industry, Government of India, complaining that various persons, including the petitioner has obtained forged Caste Certificates, which are being misused by them, therefore, these unscrupulous persons may be punished. It appears that Shri Jyotiraditya M. Scindia, who was Minister of State for Commerce and Industry, Government of India, wrote D.O. No. 1532 MOS (C&I)MP/2010 dated 30-9-2010 and forwarded the complaint to the then Chief Minister of State of M.P. for necessary action. This letter of Shri Jotiraditya M. 17 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Scindia is filed at page No. 27 of the Return. In its turn, the office of the then Chief Minister, Shri Shivraj Singh Chouhan, forwarded the complaint to the Principal Secretary, Adim Jati Kalyan Vibhag by letter dated 19-10-2010 and accordingly, the matter reached the High Power Caste Scrutiny Committee for enquiry.
23. It is submitted by the Counsel for the petitioner, that since the BJP was the ruling party in the State of Madhya Pradesh, therefore, it got apprehensive, as the elections of State Legislative Assembly were due somewhere in Nov/Dec. 2013, therefore, in order to prevent the petitioner from contesting the election as "SC" candidate, the action was taken. Para 5.5 of the writ petition reads as under :
"5.5 That, the Legislative Assembly seat Ashoknagar (MP) is reserved for "Scheduled Caste" candidates.
The Legislative Assembly elections in MP are due somewhere in Nov/Dec 2013. To prevent petitioner from contesting the election as "SC" candidate, his political rivals in BJP have pressurized MP government to cancel Petitioner's "SC" certificate. The BJP fears that petitioner is a popular candidate and if gets ticket from Congress would win in election as "SC" candidate from Congress party at Ashoknagar seat of Legislative Assembly."
24. Considered the submissions made by the Counsel for the petitioner regarding political interference/vindictiveness.
25. From complaint dated 22-9-2010 made by Ramesh Kumar Itoria, it is clear that the complainant was Member District Congress Committee and the representative of Member of Parliament and the complaint was made on a letter head with election symbol of National Congress Party. Thus, it is clear that the complaint was made by a Member of the District 18 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Congress Party, and the petitioner has also claimed that he is likely to contest the election as "SC" candidate from Congress Party. Further, the complaint was made to Shri Jyotiraditya M. Scindia, who was Minister of State for Commerce & Industry, Government of India. This Court can take judicial notice of the fact that National Congress Party was in power in the Centre. Thus, it is clear that the complaint was made to the Minister belonging to the National Congress Party. Further, the complaint was forwarded by Shri Jyotiraditya M. Scindia, Minister of State for Commerce & Industry, Government of India to Shri Shivraj Singh Chouhan, the then Chief Minister, and according to the petitioner, BJP was in power in the State. Thus, it is clear that in the present case, the complaint was made by a member of National Congress Party to a Minister belonging to National Congress Party, and the concerned Minister, in his turn, forwarded the complaint to the then Chief Minister. Therefore, the submission made by the Counsel for the Petitioner, that the BJP had an apprehension that the petitioner would win the election as a "SC" candidate, from Congress Party, and therefore, false case has been created against him, cannot be accepted. Hence, the first submission made by the Counsel for the petitioner, that in fact he is the victim of political vendetta is hereby rejected.
ii- That in the year 2004, the High Power Caste Scrutiny Committee had considered the Caste Certificate of "OBC" and at that time, the Caste Certificate of Scheduled Caste was also before the High Power Caste 19 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Scrutiny Committee and since, no comments were made by the High Power Caste Scrutiny Committee in its final order dated 11-11-2004, therefore, it has to be presumed that the Caste Certificate of Scheduled Caste, issued in favour of the petitioner, was upheld by the High Power Caste Scrutiny Committee, therefore, the Caste Certificate of the petitioner cannot be examined again and again.
26. Considered the submissions made by the Counsel for the Petitioner. To substantiate the above mentioned submissions, it is submitted by the Counsel for the Petitioner, that one Baijnath Sahu, had filed a Writ Petition before the High Court of M.P., Gwalior Bench, which was registered as W.P. No.1330 of 2002. The copy of the Writ Petition has been placed on record, which is at page 29 of the Writ Petition. The Counsel for the Petitioner has referred to Paras 6, 7 and 8 of the said Writ Petition, which reads as under :
6. That, thereafter elections of the Member Zila Panchayat Guna tookplace in the year 1999 where he submitted his nomination as Scheduled Caste candidate. Copy of the nomination form of respondent no. 4 is annexed herewith and marked as Annexure P/4.
7. That, now the respondent no. 4 has submitted a caste certificate of "OBC" category and on that basis he has been elected as President Municipal Council, Ashoknagar as "OBC" candidate. Copy of his caste certificate issued by Tehsildar is annexed herewith and marked as Annex. P/5.
8. That, from the above facts it is apparent that the respondent no. 4 has obtained forged certificates of "OBC" and SC Category. Copy of hte certifiate as SC candidate is annexed and marked as Annexure 20 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) P/6.
27. It is submitted that, this writ petition was finally disposed of by this Court by order dated 12-8-2002, with a direction, if the petitioner, in case, if makes any complaint under the aforesaid circular of the Government, the competent Authority can take action in this regard and decide the same expeditiously. Thus, it is submitted that when High Power Caste Scrutiny Committee took up the matter in the year 2004, then the "OBC" certificate as well as the "SC" certificate of the petitioner were before the High Power Caste Scrutiny Committee but in spite of that the High Power Caste Scrutiny Committee did not touch the "SC" Certificate of the Petitioner and had merely cancelled the "OBC" certificate of the Petitioner, therefore, the subsequent enquiry by High Power Caste Scrutiny Committee was unwarranted and thus, it is politically motivated.
28. Considered the submissions. It is clear from the record, that initially, the High Power Caste Scrutiny Committee by order dated 25-2- 2004 had cancelled the "OBC" certificate of the Petitioner, which was challenged by him by filing a Writ Petition No.520/2004 and the said writ petition was disposed of by order dated 3-9-2004, and the order dated 25- 2-2004, passed by the High Power Caste Scrutiny Committee was set aside on the ground of lack of quorum and the matter was remanded back for consideration afresh. Thereafter, the High Power Caste Scrutiny Committee passed a fresh order on 11-11-2004 and cancelled the "OBC" certificate of the petitioner. The relevant portion of the order dated 11- 21 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) 11-2004 is reproduced as under :
^^izdj.k ds rF; fuEukuqlkj gS %& 1- Jh cStukFk lkgw] iwoZ ik"kZn] uxj ikfydk] v'kksduxj }kjk Jh ttiky flag la/kq ds ckjs es eq[; :i ls vkjksi gS fd bUgksus e.Mh lfefr es d`"kd lnL; ds fuokZpu gsrq vH;FkhZ ds :i es tks uke funsZ'ku i= izLrqr fd;k gS og lkekU; tkfr ds lnL; ds :i es fnukad 20-4-1999 dks izLrqr fd;kA 2- Jh ttiky flag la/kq us ftyk iapk;r ds lnL; ds fuokZpu gsrq fnukad 13-5-1999 dks uV (ckthxj) vuqlwfpr tkfr ds lnL; ds :i es uke funasZ'ku i= izLrqr fd;kA 3- rglhynkj v'kksduxj us fnukad 2-12-1999 dks Jh ttiky flag l/kq dks "dhj" fiNMk oxZ dk izek.k i= tkjh fd;kA bl izek.k i= ds vk/kkj ij Jh ttiky flag la/kq uxjikfydk v?;{k ds fiNMk oxZ gsrq vkjf{kr in ij fuokZfpr gq,A 4- izfroknh Jh ttiky flag la/kq }kjk fnukad 21-2-1999 dks mPp Lrjh; Nkuchu lfefr dks izLrqr vkosnu i= es ys[k fd;k gS fd f'kdk;r drkZ us muds fo:} e.Mh lfefr o ftyk tuin iapk;r ds fuokZpu ds vkosnu izLrqr fd;s gS] os nksuks gh pquko mUgksus ugh yMs gSA ijUrq uke funsZ'ku i= es mYYsf[kr tkfr ds xyr gksus ds ckjs es Jh la/kq us izfrokn ugh fd;k gSA 5- vkjksih us izfroknh }kjk vfHkdfFkr ys[k ds laca/k es dysDVj xquk ds i= dzekad D;w@LFkk-fuokZ@f'k-@200@348 fnukad 2-8- 2002 vuqlkj o"kZ 1994 ls 1999 rd Jh ttiky flag la/kq lkekU; :i ls tuin {ks= 15 ls tuin lnL; ds :i es fuokZfpr gksdj iapk;r in/kkjh jgs gSA Jh la/kq us lkekU; oxZ ls izfrHkwfr :i;s 1000 tek dj eaMh lfefr ds lnL; okMZ 120@9 ds uke funsZ'ku i= nkf[ky dj pquko yMk gSA ftyk iapk;r {ks= dzekad 17 ds lnL; ds :i es Jh la/kq us viuk uke funsZ'ku i= Lo;a dks uV (ckthxj) vuqlwfpr tkfr dk gksuk crkdj is'k fd;k FkkA mDr uke funsZ'ku ds vk/kkj ij Jh la/kq us ftyk iapk;r dk pquko vH;kFkhZ ds :i es yMk gSA 6- mijksDr uke funsZ'ku laca/kh izek.k@vkjksi rFkk izfroknh }kjk buds fojks/k fd;s tku ds ckotwn dysDVj xquk }kjk izfroknh ds dze'k% lkekU; @ uV ckthxj (vuqlwfpr tkfr) rFkk fiNMk oxZ ds :i es fofHkUu pqukoks es vH;kFkhZ gksus dh iqf"V dh xbZ gSA mijksDr rF;ksa ds vk/kkj ij mPp Lrjh; Nkuchu lfefr }kjk fu.kZ; fy;k x;k fd %& Jh ttiky flag la/kq }kjk gh iwoZ es Lo;a dks uV ckthxj crkdj vuqlwfpr tkfr ds izek.k i= izkIr fd;k x;k tks ckn es jktuSfrd ykHk ds fy;s Lo;a dks dhj crkdj fiNMk oxZ tkfr dk izek.k i= izkIr fd;k x;kA vr% Jh ttiky flag la/kq dks rglhynkj v'kksduxj }kjk iznRr "dhj" fiNMk oxZ tkfr dks izek.k i= fujLr fd;k tkrk gSA^^
29. It is pertinent to note here that the petitioner accepted the findings given by the High Power Caste Scrutiny Committee and did not challenge 22 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) the findings given by the High Power Caste Scrutiny Committee and thus, the "OBC" certificate dated 2-12-1999 issued in favour of the petitioner stood cancelled. Therefore, it is clear that the findings of facts and certain observations regarding political advantage, made by the High Power Caste Scrutiny Committee in its order dated 11-11-2004 were never challenged by the petitioner and thus, today also they holds the field.
30. Thus, it is clear from order dated 11-11-2004, that earlier the petitioner had submitted his nomination form as a candidate of "General Category" for the post of Member Krishi Upaj Mandi, and thereafter, in year 1999, he submitted his nomination paper for the post of Member Zila Panchayat, Ashoknagar as a "SC" candidate. Thereafter, he contested the election for the post of President Municipal Council as a "OBC" candidate, and again on 6-11-2008, he obtained the caste certificate of "SC".
31. Thus, it appears that the petitioner has changed his Caste from time to time as per his convenience.
32. As per the order dated 11-11-2004, passed by the earlier High Power Caste Scrutiny Committee, the petitioner had obtained the Caste Certificate of "OBC" on 2-11-1999, whereas according to the contents of WP No.1330/2002, the election for the post of President, Municipal Council, Ashoknagar were held in the month of December 1999 (Kindly see para 5.2 of the Writ Petition No.1330/2002), and the petitioner had contested the said election as "OBC" candidate. Thus, it is clear that the 23 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) petitioner had obtained the "OBC" certificate, just few days before election for the post of President, Municipal Council, Ashoknagar.
33. Now, the present certificate of "SC" was issued to the petitioner on 6-11-2008. This Court can take judicial notice of the fact, that the election for the State Legislative Assembly were held on 27 th of Nov. 2008. However, it is not known that whether the petitioner had contested the said election or not, but one thing is clear, that again just few days prior to the election for State Legislative Assembly, the petitioner had obtained the present caste certificate of "SC".
34. As the "SC" certificate, in question in the present petition is dated 6-11-2008 and since, the meeting of the earlier High Power Caste Scrutiny Committee was held on 11-11-2004, and since, the present Caste Certificate of "SC" was not in existence, therefore, there was no occasion for the High Power Caste Scrutiny Committee to consider the "SC" certificate dated 6-11-2008, issued in favour of the petitioner. It is submitted by the Counsel for the Petitioner, that the earlier High Power Caste Scrutiny Committee was already aware of the fact, that earlier the petitioner had submitted his nomination papers as "SC" candidate, therefore, it should have commented on the "SC" certificate of the petitioner, therefore, in absence of such observations, the High Power Caste Scrutiny Committee cannot be permitted to reopen the same issue. Consider the submissions made by the Counsel for the Petitioner.
35. The Counsel for the Petitioner was asked as to whether the petitioner was holding any "SC" Certificate on 2-11-1999 when the 24 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) "OBC" certificate was issued in his favour and if he was having such certificate, then what happened to the said "SC" certificate and if the petitioner was belonging to "SC" candidate, then why he changed his caste, and why he obtained the "OBC" certificate and whether he had withdrawn his earlier "SC" certificate or not? It is submitted by the Counsel for the Petitioner, that as the present petition has been filed against the order dated 16-9-2013 (Annexure P/8), therefore, there is no pleading to meet out the above mentioned questions. He further submitted that, if any opportunity is granted, then the petitioner would clarify the above mentioned facts before the High Power Caste Scrutiny Committee. However, this fact is admitted by the Counsel for the Petitioner, that the "SC" certificate in question was issued on 6-11-2008, therefore, there was no occasion for the earlier High Power Caste Scrutiny Committee, to consider that whether the "SC" certificate dated 6-11-2008 was properly issued or not?
36. Thus, the second contention raised by the Counsel for the petitioner is rejected.
iii- There was lack of quorum as the final order has been signed by only three members out of four.
37. By referring to circular dated 8-9-1997 (Annexure R/4), it is submitted by the Counsel for the Petitioner, that the State Govt. has constituted a High Power Caste Scrutiny Committee consisting of four members i.e.,
1. Principal Secretary/Secretary, Adim Jati aur Anusuchit Jati Kalyan Vibhag.
25 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others)
2. Director, Anusuchit Jati Vikas
3. A Specialist, having knowledge about S.C., as nominated by the Chairman.
4. Secretary, Anusuchit Jati Aayog.
38. By referring to the Attendance Sheet (Annexure R/10), it is submitted by the Counsel for the Petitioner, that the High Power Caste Scrutiny Committee of 5 members i.e., 1. Secretary, Anusuchit Jati Kalyan Vighag, 2. Commissioner, Anusuchit Jati Vibhag, 3. Director, Adim Jati Anusandhan and Vikas Vibhag, 4. Secretary, Anusuchit Jati Aayog and an 5. Director, National Anusuchit Jati Aayog was constituted. From attendance Sheet (Annexure R/10), it is clear that 4 members out of 5 were present and Director, National Anusuchit Jati Aayog was absent. However, the final order was signed by three members and was not signed by Joint Director, Adim Jati Anusandhan and Vikas Sansthan Bhopal. By referring to the note sheet dated 25-9-2013 (Annexure R/11), it is submitted by the Counsel for the petitioner, that even if Shri G.P. Patel, had signed the order at a later stage, it would not cure the defect and thus, the order dated 16-9-2013 is bad in the eyes of law for the reason that the same was not signed by all the four members of the High Power Caste Scrutiny Committee.
39. Considered the submissions made by the Counsel for the Petitioner.
40. It is clear from the circular dated 8-9-1997, a Four Member Committee has to be constituted, whereas from the attendance sheet, it appears that the High Power Caste Scrutiny Committee of 5 members was constituted. On 16-9-2013, one member of the Committee was absent, 26 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) and the attendance sheet was signed by remaining 4 members, however, the order dated 16-9-2013 was signed by only three members and from the note sheet dated 25-9-2013, it appears that the fourth member was on leave on 25-9-2013, therefore, his signatures could not be obtained.
41. Thus, the moot question for determination is that whether a majority decision taken by a Committee would stand vitiated only on the ground that either the remaining members had not attended the meeting or had not signed the decision of the Committee. It is submitted by the Counsel for the petitioner, that such a decision would be bad because of lack of quorum.
42. To consider the submissions made by the Counsel for the petitioner, it would be appropriate to consider the law governing the field.
43. The Supreme Court in the case of People's Union for Civil Liberties Vs. Union of India reported in (2005) 5 SCC 363 has held as under :
"15. It is nextly argued by the learned counsel for the petitioner that there was no proper consultation amongst the members of the Selection Committee. This is based on the fact that one of the members who was then the Leader of Opposition in the Council of States did not respond to the intimation sent to him in regard to the selection of the members since he was in hospital at that point of time. A perusal of the Act does not show that there is any quorum fixed for the selection nor does it provide for any meeting nor has any particular procedure been provided for. Under the Act, consultation by circulation is not impermissible. In such a situation, if one out of six did not respond, it would not vitiate the opinion of the other five members. On the contrary sub-section (2) of Section 4 specifically says that no appointment of a Chairperson or a member shall be invalid merely by reason of any vacancy in the Committee. In the 27 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) instant case the Prime Minister, the Speaker of the House of the People, Minister in charge of the Ministry of Home Affairs in the Government of India, Leader of Opposition in the House of the People and Deputy Chairman of the Council of States having agreed on the appointment of the second respondent, we find no statutory error in the appointment of the second respondent."
The Supreme Court in the case of Iswharichand VS. Satyanarain Sinha and others reported in AIR 1972 SC 1812 has held as under :
"5..........It is rather unfortunate that the appellant's Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delivered into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid.
6. This proposition is well recognised and is also so stated in Halsbury's Laws of England, Third Edition (Vol. IX, page 48, Para 95). It is, therefore, unnecessary to refer to any decisions on the subject. In the view we have taken, the appeal is allowed with costs against respondent 3, the order of the Chancellor revoking the appointment of the appellant is set aside and the appellant is declared to have been validly appointed as Vice-Chancellor Of the Saugar University as from the 22nd June 1970."
A Division Bench of Delhi High Court, by judgment dated 12-3-2018 28 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) passed in the case of Talluri Srinivas Vs. Union of India in W.P. (C) 8341/2017 has held as under :
"15. In W.P. (C) No. 2674/2012, Kavita Meena & Ors. Vs. Government of National Capital Territory of Delhi & Ors. and other connected matters decided on 22nd May, 2012, challenge was regarding composition of Selection Committee, which as per column 13 of the Recruitment Rules, was to consist of Chairman, SCERT, Director, SCERT, Director of Education and representative of SC/ST to be nominated by Chairman, SCERT. It had transpired that the Chairman, SCERT and Director Education, Department of Education had not participated in some of the meetings when interviews were held. Issue was whether the Selection Committee was duly constituted in view of the Rule position. It was held as under:-
"5. The learned counsel appearing on behalf of the petitioners contended that once the majority of the members of the Selection Committee were present in the interviews held for selecting candidates, the selection process cannot be said to have been vitiated. It was also contended that as no quorum has been prescribed under the Recruitment Rules, the only requirement was that the majority of the members of the Committee should be present. In the present case, there were actually 4 to 5 members present in each of the interviews held during the period from 08.07.2010 to 28.07.2010. Therefore, the majority of the members of the Selection Committee were present in each and every interview meeting which was held. It was also submitted on behalf of the petitioners that the absence of the Chairman of SCERT did not make any difference inasmuch as the members present could nominate one amongst them to chair the meetings. In the present case, all the meetings were chaired by the Director, SCERT. The learned counsel for the petitioners placed reliance on two decisions of the Supreme Court in the case of Ishwar Chandra v. Satyanarain Sinha & Ors (1972) 3 SSC 383 and People‟s Union for Civil Liberties v. Union of India and Anr. (2005) 5 SCC 363 in support of the 29 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) aforesaid contention.
6. The learned counsel for the respondents, who were applicants before the Tribunal, reiterated their stand before the Tribunal and supported the decision of the Tribunal. In addition, they referred the decision in the case of State of Andhra Pradesh & Anr. v. Dr. Mohanjit Singh and Ors. 1988 (Supp) SCC 562. It was contended that because of the said decision, the absence of a person from the Selection Committee vitiated the selection process.
7. Having heard the learned counsel for the parties, we are of the view that the decision rendered by the Tribunal is not in accordance with law and has to be set aside. The reason is that the two Supreme Court‟s decisions cited by the learned counsel for the petitioners clearly hold the field and in so far as the decision cited by the learned counsel for the respondents is concerned, that is clearly distinguishable.
8. In Ishwar Chandra (supra), the case before the Supreme Court was concerning the appointment of the Vice-Chancellor of Saugar University. For the purpose of the appointment of the Vice- Chancellor, a Selection Committee was to be constituted under Section 13(2) of the University of Saugar Act, 1946. The Committee to be constituted was to consist of three persons; two of whom were to be elected by the Executive Council by single transferable vote from amongst persons not connected with the University or a College and the third was to be nominated by the Chancellor who was also empowered to appoint one of them as Chairman of the Committee. The two persons elected by the Executive Council of the University were Mr G.K. Shinde, a former Chief Justice of a High Court and Justice T.P. Naik of the Madhya Pradesh High Court while the third member, Shri C.B. Agarwal, a former Judge of the Allahabad High Court, was nominated by the Chancellor. Justice Naik was, however, unable to attend the meeting which was slated to be held on 04.04.1970 and in his absence the other two persons, namely, Shri Shinde and Shri 30 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Agrawal met as a Committee and submitted a panel of names from which the Chancellor appointed the appellant before the Supreme Court as Vice-Chancellor. The question that arose was whether only two members of the Committee, who were present, could have validly selected the appellant as a ViceChancellor. The Supreme Court, after considering the various facts and circumstances of the case, came to the following conclusion:-
"If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid".
9. The Supreme Court in arriving at this conclusion has placed reliance on the said proposition as stated in Halsbury's Laws of England, Third Edition (Vol. IX, page 48, para
95), which reads as under:-.
"95. Presence of quorum necessary. The acts of a corporation, other than a trading corporation, are those of the major part of the corporators, corporately assembled. In other words, in the absence of special custom or of special provision in the constitution, the major part must be present at the meeting, and of that major part there must be a majority in favour of the act or resolution contemplated. Where, therefore, a corporation consists of thirteen members, there ought to be at least seven present to form a valid meeting, and the act of the majority of these seven or greater number will bind the corporation. In considering whether the requisite number is present, only those members must be included who are competent to take part in the particular business before the meeting. The power of doing a corporate act may, however, be specially delegated to a particular number of members, in which case, in the absence of any other provision, the method of procedure applicable to the body at large will be applied to 31 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) the select body.
If a corporate act is to be done by a definite body along, or by a definite body coupled with an indefinite body, a majority of the definite body must be present.
Where a corporation is composed of several select bodies, the general rule is that a majority of each select body must be present at a corporate meeting; but this rule will not be applied in the absence of express direction in the constitution, if its application would lead to an absurdity or an impossibility. Thus, where such a select body is composed of four members and two of them happen to vacate their offices at the same time, an election will be valid although only the remaining two are present at it."
10. The second decision relied upon by the learned counsel for the petitioner was that of People‟s Union for Civil Liberties (supra). In that case, the appointment of a member of the National Human Rights Commission was in question. Section 4 of the Protection of Human Rights Act, 1993, stipulated that the appointment of Chairperson and other Members of the National Human Rights Commission has to be made, after obtaining recommendations of a Committee comprising:-
The Prime Minister • The Speaker of the House of People • The Minister Incharge of the Ministry of Home Affairs in the Government of India • Leader of Opposition in the House of People • Leader of Opposition in the Council of States • Deputy Chairman of the Council of States It so happened that the selection in the case before the Supreme Court took place by a Committee in which the Leader of Opposition in the House of People was absent. Therefore, the selection was under challenge. The Supreme Court held as under:-
"15. It is nextly argued by the learned counsel for the petitioner that there was no proper consultation amongst the members of the Selection Committee. This is based on the fact 32 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) that one of the members who was then the leader of the Opposition in the Council of the States did not respond to the intimation sent to him in regard to the selection of the members since he was in the hospital at that point of time. A perusal of the Act does not show that there is any quorum fixed for the selection nor does it provide for any meeting nor any particular procedure has been provided. Under the Act consultation by circulation is not impermissible. In such a situation, if one out of six did not respond, it would not vitiate the opinion of the other five Members. On the contrary Subclause 2 of Section 4 specifically says that no appointment of a Chairperson or a member shall be invalid merely by reason of any vacancy in the Committee. In the instant case the Prime Minister, the Speaker of the House of the People, Minister Incharge of the Ministry of Home Affairs in the Government of India, Leader of Opposition in the House of People and Deputy Chairman of the Council of States having agreed on the appointment of the second respondent, we find no statutory error in the appointment of the second respondent."
* * * *
20. In Ram Autar Santosh Kumar vs. State of Bihar & Ors., AIR 1987 Patna 13, a Full Bench of the Patna High Court had examined the question whether a rule prescribing quorum for Assessment Sub-Committee constituted under Section 27-A(1) of the Bihar Agricultural Produce Market Act, 1961 was ultra vires the main provision or the rule making power. Section 27A(1) had stipulated that an Assessment Sub-Committee shall consist of Chairman, Vice Chairman and Secretary of the Market Committee for the purpose of assessment of levy and fee. It did not prescribe any minimum quorum. Quorum for Assessment Sub-Committee prescribed by Rule 88 was two members who had the discretion to refer the case to a Bench of all members of the Sub- Committee. For several reasons, the challenge was rejected. What is of importance for the present decision are the observations in paragraph 20 of the said judgment which reads :
"20. In this context one may perhaps equally 33 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) highlight the anomalous result which must flow herein from holding that each and every member of the Assessment Sub-Committee must always attend throughout each and every proceeding of an assessment. Would it be necessary that all the three members must sit together like a regular Full Bench of a Court of Law to hear and decide every case of the assessment of Market fee? Would it be even possible or practicable to do so? If one of the members of the Assessment Sub-Committee was taken ill or otherwise becomes unable to attend for some time the whole proceedings in all the existing cases be stalled and the other members of the Committee debarred from functioning or deciding the cases by themselves. If such were to be the situation, each member can stall the function of the Assessment Sub-Committee to the state of total paralysis. The Assessment Sub-Committee would be eventually rendered nugatory during the period of absence of any of its members. Identical situation would arise in the case of illness, or failure to attend even one of the many meetings for one or the other reasons for each one of its members. An interpretation which would lead to such anomalous, if not mischievous, results has, therefore, to be avoided even on the larger canons of construction."
Observations and reasoning above is cogent and we respectfully agree. In an earlier paragraph, the Full Bench had rejected the contention that the question of quorum of the Sub-Committee must be decided on the same parameters as quorum of a Court, i.e. the quorum of a Division Bench or quorum fixed for the Larger Bench. It was held that the said analogy should not and cannot be drawn for determining the question of quorum of statutory bodies performing quasi-judicial functions. The contention that in case the third member had participated, he may have taken a contrary view and may have converted the other two members to his view was rejected as an assumption based upon surmises and conjectures. This contingency, it was observed, was basic and inherent in every statutory body for which quorum has been lawfully prescribed. Indeed when minimum quorum of members is prescribed, in fact it becomes 34 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) the committee/ authority, itself. For arriving at the said finding, the Full Bench referred to the decision in Ishwar Chandra (supra) and the ratio that when no quorum was prescribed and majority members were present, the meeting would be legal and valid.
Reference was also made to the judgment in Punjab University, Chandigarh vs. Vijay Singh Lamba, AIR 1976 SC 1441 wherein the majority view taken by the Full Bench of the Punjab & Haryana High Court in judgment reported as Vijay Singh Lamba vs. Punjab University, AIR 1976 P&H 143 was reversed approving the minority opinion and holding that if the quorum consists of two members then any two out of three can perform functions of the Standing Committee. Referring to the requirement of unanimity in the Regulation, it was observed that it refers to unanimity of the members who for the time being were sitting in the Committee and were the quorum.
21. We would at this stage refer to the decision in Vijay Singh Lamba (supra) wherein the Supreme Court held that „quorum‟ denotes minimum number of members of any body or persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. Generally, it would be left to the Committees/Bodies themselves to fix the quorums for the meetings. However, in the said case, the syndicate which had appointed the Standing Committee had fixed the quorum, which it was held, was valid. Pertinently it was observed that it would be inappropriate to draw parallels between such cases and a court proceeding where a matter by law, the case was required to be heard by Benches of three Judges. Reliance placed by the petitioner on the said observations would be entirely fallacious and wrong, for the present case statutory provisions quoted above refer to constitution of the Appellate Authority consisting of five members, without the enactment specifically prescribing or fixing any quorum. The contention that by default or in the absence of any provision fixing statutory quorum, all five members of the Appellate Authority must sit to constitute a valid quorum, otherwise the proceedings before the Appellate Authority will be illegal and invalid, has to be rejected and refused as fallible and flawed. This contention has been repeatedly examined and 35 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) answered in negative.
44. There is nothing in Circular dated 8-9-1997, to indicate, that in case all the members do not attend the meeting, then the proceedings of the Committee shall stand vitiated. Furthermore, there is nothing in the circular to indicate that approval by circulation is not permissible. Thus, if the signatures of Shri G.P. Patel were obtained on the impugned order subsequently, it would not vitiate the proceedings/order, because approval by circulation is not prohibited and secondly, the original order dated 16-9-2013 was already signed by majority of the members of the Committee, thus, it can be said that the decision dated 16-9-2013, was by a majority of Committee, therefore, it is not vitiated. Thus, the contention of the petitioner, that the order dated 16-9-2013 is vitiated on account of lack of quorum and non-signing of order by Shri G.P. Patel, is hereby rejected.
iv- No notice was served upon the petitioner;
v- Even otherwise, 15 days notice was not issued; vi- The provisions of Order 5 C.P.C. were not followed.
45. For the sake of convenience, all the three arguments advanced by the petitioner shall be considered conjointly.
46. The Supreme Court in the case of Madhuri Patil Vs. Commr. Tribal Development reported in (1994) 6 SCC 241 has held as under :
"13. 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 Castes or Scheduled Tribes or "OBC" candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to 36 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) 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. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer high-er 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.37 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others)
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all 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 should also 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 pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
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 acknowledgement due or through the head of the educational institution concerned 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/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes 38 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) 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 vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three 39 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
47. Accordingly, a High Power Caste Scrutiny Committee has been constituted and by circular dated 8-9-1997, procedure, to be adopted by the Committee, has also been provided which reads as under :
^^Nkuchu lfefr }kjk viukbZ tkus okyh tkap izfdz;k Nkuchu lfefr] tkap dk dk;Z iqfyl vf/kdkjh ds ek/;e ls djkosxhA tkap vf/kdkjh ekSds ij tkdj foLr`r tkap izfrosnu Nkuchu lfefr dks fu/kkZfjr vof/k ds vanj izLrqr djsxkA 2- Nkuchu lfefr] ;fn lrdZrk vf/kdkjh dh fjiksZV ds vk/kkj ij ;g ikrh gS fd vkosnd dk lkekftd Lrj dk Dyse lgh ugh gS ;k lansgkLin gS ;k xyr :i ls Dyse izLrqr dj jgk gS r; lfefr ,sls vkosnd dks lrZdrk vf/kdkjh dh fjiksZV dh izfr ds lkFk iathd`r Mkd ls jlhn lfgr] dkj.k crkvks uksfVl lwpuk i= 'kS{kf.kd laLFkk ; dk;kZy; izeq[k ds ek/;e ls HkstsaxsA dkj.k crkvks lwpuk i= es bl ckr dk mYys[k gksxk fd vkosnd viuk vH;kosnu ;k mRrj dkj.k crkvks lwpuk i= izkfIr ds 15 fnol ds Hkhrj lapkyd dks izLrqr djsa vkSj fdlh Hkh ifjfLFkfr es vH;kosnu vFkok mRrj izLrqr djus ds fy, 30 fnu ls vf/kd dk 40 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) le; ugh fn;k tk;sxkA ;fn vkosnd mls lquus dk vkSj okn izLrqr djus dk volj pkgrk gS rks ,slk vkosnu ;k mRrj izkIr gksus ds i'pkr~ lfefr dh cSBd lapkyd cqyk;sxs vkSj laa;qDr@vfrfjDr lfpo] ,slh lfefr ds v?;{k ds :i es vkosnd dks lquokbZ ,oa lk{; izLrqr djus dk iw.kZ volj nsaxsA lfefr izdj.k es fu.kZ; ds fy;s vke lwpuk tkjh djsxh] ftldk izpkj izlkj xkao es ;k eksgYys es MkSaMh ;k vU; lqfo/kktud lk/kuksa ls fd;k tk;sxkA rkfd ;fn dksbZ O;fDr ;k la/k vkosnd ds Dyse dk fojks/k djuk pkgs rks os dj ldsA vkosnd dks ,slk volj nsus ds ckn Hkh vkosnd dks mlds vfHkHkkod ds ek/;e ls ;k vU; volj nsus ds ckn lfefr ,slh tkap dj ldsxh ftlls vkosnd ds Dyse vkSj vU; vkifRr;ksa ij fopkj djus ij 'kh/kz fu.kZ; ysus ds fy, vko';d gksA mHk; i{kksa dks lqudj lfefr ,d mfpr vkns'k ikfjr djsxh ftles fu"d"kZ ij igqapus ds fy, laf{kIr rdksaZ vFkok rF;ksa dk fooj.k fn;k tk;sxkA 3- ,sls izdj.kksa tgka lrdZrk vf/kdkjh dh fjiksZV vkosnd ds i{k es gks] lfefr dks fdlh dk;Zokgh dh vko';drk ugh gksxhA 4- ;fn mEehnokj vO;oLd gks rks mlds ekrk firk vfHkHkkodksa dks Hkh lwpuk i= tkjh fd;k tk;sxk rkfd mlds ekrk firk@vfHkHkkod vius Dyse ds i{k es lk{; izLrqr dj ldsA 5- lfefr }kjk tkap izfrfnu ds vk/kkj ij dh tk;sxh vkSj fdlh Hkh fLFfr es bls iw.kZ djus ds fy;s 2 ekg ls T;knk le; ugh ysxhA ;fn tkap lfefr ;g ikrh gS fd vkosnd dk Dyse >wBk ;k vlR; gS rks lfefr ,slh tkfr izek.k i= dh fujLr djus ;k jktlkr djus ds fy;s vkns'k ikfjr djsxhA bl tkap ds fu"d"kksZa es ls mEehnokj ;k mlds ekrk firk@ vfHkHkkodksa dks ,d ekg ds Hkhrj voxr djk;k tk;sxkA 6- Nkuchu lfefr }kjk ikfjr vkns'k vafre gksxkA^^
48. It is submitted that the Committee was required to issue notice by registered post and at least 15 days time should be given to file reply. It is further submitted that the Committee is under obligation to follow the procedure for service of notice, as provided under Order 5 of C.P.C. Further, there is nothing on record to suggest that the notice were served upon the petitioner. On the contrary, there is a specific report by the Collector, that on both the occasions, the petitioner was not available therefore, the notice could not be personally served upon him. Further, it is submitted that neither any SMS was sent to the petitioner, nor any notice was uploaded on his Facebook account. It is further submitted that 41 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) the newspaper cuttings as relied upon by the respondent cannot be considered, as no notice was published in the newspaper, but merely a news was published with regard to the attempts made by the authorities to serve the petitioner.
49. Heard the learned Counsel for the petitioner.
50. Section 141 of C.P.C. reads as under :
"141. Miscellaneous proceedings.-- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Explanation.-- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution."
51. The High Power Caste Scrutiny Committee has been constituted in pursuance to the order passed by the Supreme Court in the case of Madhuri Patil (supra). By circular dated 8-9-1997, a detailed procedure, to be followed by the High Power Caste Scrutiny Committee, has also been laid down. Thus, in the considered opinion of this Court, under these circumstances, the High Power Caste Scrutiny Committee is not required to follow the provisions of Order 5 of CPC.
52. It is next contended by the Counsel for the Petitioner, that as per the circular dated 8-9-1997, the Committee was required to send the notice by registered post, however, in the present case, they were sent for service by humdust, and thus, the procedure adopted by the Committee was not in accordance with the procedure laid down in the circular dated 8-9-1997.
42 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others)
53. The submission made by the Counsel for the Petitioner, cannot be accepted. It is clear from circular dated 8-9-1997, that the notice by registered post has to be sent through head of the institution, whereas it is not the case of the Petitioner, that at the relevant time, he was holding any post. Further, in the circular dated 8-9-1997 itself, it is mentioned that where the candidate is a minor, then the notice shall be issued to his parents/guardian, however, no mode of service of notice has been provided in clause 4 of the procedure laid down in the circular dated 8-9- 1997. Thus, this Court is of the considered opinion, that if the Committee had sent the notice, to be served humdast on the petitioner, then the said procedure cannot be said to be defective or bad in law.
54. The next question for determination is that whether the petitioner was avoiding the service of notice or not?
55. According to the impugned order dated 16-9-2013, it appears that by order dated 6-8-2013, the High Power Caste Scrutiny Committee issued notices to the petitioner, for his appearance on 12-8-2013. It was reported by the Collector Guna, that the Sub Divisional Officer was sent to the house of the petitioner, for service of notice, however, he was not in the house. The copy of the report given by the S.D.O. was also annexed with the report of the Collector, from which it appears that the Sub-Divisional Officer, Guna received the copy of the notices on 8-8- 2013 and accordingly, he went to the house of the petitioner, but he was not found in the house, and the family members informed the S.D.O., that the petitioner would be available on the next day. On 9-8-2013, when the 43 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) SDO again went to the house of the petitioner, then again he was not available in the house. Again on 10-8-2013, no one was found in the house, accordingly, the notice could not be served personally on the petitioner. Thereafter, the notice was read over to the relatives and neighbours and they were requested to inform the petitioner. One copy of the notice was affixed on the house and the signatures of the neighbourers were obtained. The entire proceedings were got videographed. SMS was sent on the mobile of the petitioner and news was also uploaded on the Facebook account of the petitioner. News was also published in the local print and electronic media. However, on 12-8-2013, the petitioner did not appear before the High Power Caste Scrutiny Committee. Seven complainants appeared against the petitioner, and therefore, their statements were recorded.
56. However, in order to give another opportunity of hearing, the High Power Caste Scrutiny Committee, decided to issue fresh notice to the petitioner and accordingly, fresh notice was issued on 7-9-2013 for service of the same through Collector, Guna, for his appearance on 16-9- 2013. Again the Collector, Guna by his report dated 13-9-2013 informed that the notice was received by him on 12-9-2013. He and Tahsildar, Ashoknagar tried to contact the petitioner, but he was not available. Three attempts were made to serve the notice but every time, they could not be served as the house was locked. Accordingly, the notice was read over to his relatives and neighbourers, and request was made to inform the petitioner. A copy of the notice was affixed on the house of the 44 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) petitioner and Panchnama was prepared. The entire efforts were videographed. SMS was also sent on the mobile phone of the petitioner and news was also uploaded on the Facebook account of the petitioner. Public notice was also given by beat of drums and news was also published in the newspaper. On 16-9-2013 also, the Petitioner did not appear before the High Power Caste Scrutiny Committee. Thus, it is clear that all efforts were made by the authorities to serve the petitioner, however, he managed to avoid the service of notice. A news was also published in the news papers, thus, it is clear that the petitioner had deliberately avoided the service of notice in spite of all the efforts made by the authorities, and thus, the news published in the newspaper can be said to be service by substituted service by publication.
57. However, another important question which requires consideration is that even when this Court has come to a conclusion that the petitioner had avoided the service of notice and the news published in the newspaper can be said to be a service by substituted service of publication, then whether the Committee could have proceeded ex parte against the petitioner?
58. From the impugned order dated 16-9-2013, it is clear that on two occasions, notices were issued to the petitioner i.e., firstly on 6-8-2013 and secondly on 7-9-2013. While issuing notice on 6-8-2013, the Committee had fixed the date of appearance as 12-8-2013 and while issuing notice on 7-9-2013, the date of appearance of the petitioner was fixed as 16-9-2013. Circular dated 8-9-1997 provides that by issuing 45 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) notice to the candidate, 15 days time should be given from the date of receipt of notice. In the present case, on both the occasions, the date of appearance was fixed prior to expiry of 15 days time. Thus, this Court is of the considered opinion, that although the notices are treated to be served on the petitioner, but still they were bad in law, as the minimum stipulated time was not given to the petitioner, and thus the right of the petitioner to respond to the notices was violated.
59. Now the next question for determination is that when sufficient time was not granted to the petitioner, and the petitioner also did not appear before the Committee and did not pray for time to file reply, then whether the proceedings of the Committee can be said to be vitiated or not?
60. It is submitted by the Counsel for the respondents, that when the petitioner was served with the notice, even then he did not appear before the Committee and did not pray for time, therefore, the proceedings before the Committee would not stand vitiated.
61. Per contra, it is submitted by the Counsel for the petitioner, that when the notice itself was per se illegal, then non-appearance of the petitioner would not validate the proceedings of the Committee.
62. Considered the submissions made by the Counsel for the parties.
63. Order 9 Rule 13 C.P.C reads as under :
"13. Setting aside decree ex parte against defendant.-- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was 46 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
Explanation.-- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."
Thus, it is clear that mere irregularity in the service of notice/summons shall not be a ground to set aside an ex parte decree. However, the knowledge of pendency of the suit is not sufficient to attract 2nd proviso to Order 9 Rule 13 C.P.C., but the knowledge of the date of hearing is important. The Supreme Court in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh reported in (2002)5 SCC 377 has held as under :
"11. The High Court has overlooked the second proviso to Rule 13 of Order 9 CPC, added by the 1976 Amendment which provides that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. It is the knowledge of the "date of hearing" and not the knowledge of "pendency of suit" which is relevant 47 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non- service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise."
64. In the impugned order dated 16-9-2013, it has not been held that the petitioner had any knowledge of date of hearing and in spite of that he has not appeared. It is submitted that the respondents have filed the copy of the newspapers as Annexure R/8 to show that it was mentioned in the news that the next date of hearing was 12-8-2013, but thereafter, the Committee itself had decided to give one more opportunity to the petitioner and accordingly, fresh notice was issued. According to the impugned order dated 16-9-2013, news was once again published in the newspaper, but the respondents have not placed the said newspapers on record. It is further submitted that in spite of the repeated opportunities, the respondents have not produced the original record of the proceedings of the High Power Caste Scrutiny Committee, therefore, an adverse inference has to be drawn, and it has to be held that no date of hearing was mentioned in the newspaper. Considered the submissions made by the Counsel for the petitioner and perused the record. The record of the High Power Caste Scrutiny Committee was made available before this Court on 6-12-2018, but since, the same was not complete, therefore, the case was adjourned. On 12-3-2019, the entire record of the High Power 48 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) Caste Scrutiny Committee was available (as is evident from the order dated 12-3-2019), but when the case was fixed for hearing, then on 22-4- 2019, the record of the High Power Caste Scrutiny Committee was not produced, and a specific direction was also given to the respondents to keep the original record available on 25-4-2019, however, again on 25-4- 2019, the respondents did not produce the record. Why the record was sent back specifically when it was available on 12-3-2019 has also not been explained by the Counsel for the respondents. Why the record has not been called in spite of the specific order by this Court on 22-4-2019 has also not been clarified by the State Counsel. It appears that for any reason best known to the respondents, they are now deliberately avoiding to produce the record.
65. Be that whatever it may.
66. The crux of the matter is that the record of the Committee is not before the Court, and under these circumstances, this Court has no option but to hold that the petitioner was not aware that 16-9-2013 is the date of hearing before the High Power Caste Scrutiny Committee.
67. Now, the question for determination is that whether any prejudice has been caused to the Petitioner because of ex parte order or not?
68. It is well established principle of law that violation of Natural Justice, by itself would not be sufficient to quash an order, unless and until, the person is prejudiced by denial of opportunity.
69. The Supreme Court in the case of Dharampal Satyapal Ltd. Vs. CCE reported in (2015)8 SCC 519 has held as under : 49 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others) "40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz.
the test of prejudice or the test of fair hearing.
* * * *
45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco."
The Supreme Court in the case of Ashok Kumar Sonkar v. Union of India reported in (2007) 4 SCC 54 has held as under :
"26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well settled that it cannot put 50 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.
29. In Aligarh Muslim University v. Mansoor Ali Khan the law is stated in the following terms: (SCC p. 540, para 25) "25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of 'admitted or indisputable facts leading only to one conclusion' referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
30. In Karnataka SRTC v. S.G. Kotturappa this Court held: (SCC p. 420, para 24) "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be 51 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given."
31. In Punjab National Bank v. Manjeet Singh this Court opined: (SCC pp. 653-54, para 17) "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice."
32. In P.D. Agrawal v. State Bank of India this Court observed: (SCC p. 791, para 30) "30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change."
It was further observed: (SCC pp. 793-94, para 39) "39. Decision of this Court in S.L. Kapoor v.
Jagmohan whereupon Mr Rao placed strong reliance to contend that non-observance of the principles of natural justice itself causes prejudice or the same should not be read 'as it causes difficulty of prejudice', cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala 52 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) v. S.K. Sharma and Rajendra Singh v. State of M.P. the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula. (See Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and State of U.P. v. Neeraj Awasthi. See also Mohd. Sartaj v. State of U.P.)"
The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy, as is well known, should not be misplaced.
33. In Maruti Udyog Ltd. v. Ram Lal a Division Bench of this Court, wherein one of us was a member, noticing some decisions, observed: (SCC pp. 654-55, paras 44-45) "44. While construing a statute, 'sympathy' has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the workmen concerned.
45. In A. Umarani v. Registrar, Coop. Societies this Court rejected a similar contention upon noticing the following judgments: (SCC pp. 131-32, paras 68-70) '68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.
69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is stated: (SCC p. 144, paras 36-
37) "36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court 53 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) ordinarily would not pass an order which would be in contravention of a statutory provision.
37. As early as in 1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. observed:
(All ER p. 123 E) 'We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles.' "
70. Yet again, recently in Ramakrishna Kamat v. State of Karnataka this Court rejected a similar plea for regularisation of services stating: (SCC pp. 377- 78, para 7) "We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment." ' "
34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity.
35. We have noticed hereinbefore that in making appointment of the appellant, the provisions of Articles 14 and 16 of the Constitution and statutory rules were not complied with. The appointment, 54 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction."
70. Thus, in order to find out that whether any prejudice has been caused to the petitioner or not, few questions were put by the Court, to the Counsel for the Petitioner, out of which some of them are as under :
1. Whether the petitioner ever contested any election for the post of Member Janpad Panchayat in the year 1994, as a "General Category Candidate" or not and whether he was elected or not?
2. Whether in the year 1999, the petitioner had contested the election for the post of Member Zila Panchayat as a candidate of "Scheduled Caste" or not and when the certificate of "Scheduled Caste" was obtained by him?
3. Whether the petitioner had contested the election for the post of President, Municipal Council Ashoknagar as a candidate of "OBC" and under what circumstances, the "OBC"
certificate dated 2-12-1999 was issued to him and what happened to his earlier certificate of "SC"?
4. Why the certificate of "OBC" was obtained by the petitioner, just few days prior to the elections for the post of President, Municipal Council, Ashoknagar?
5. Whether any certificate of "SC" was ever issued in favour of the petitioner prior to 6-11-2008 and if so, then on what date, and when the said certificate was surrendered by him and why?
6. Why the petitioner did not obtain the "SC" certificate from 11-11-2004 ("OBC" certificate was cancelled by order dated 11-11-2004 by the High Power Caste Scrutiny Committee) till 6-11-2008?
7. The election for M.P. State Legislative Assembly were held 55 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) on 27-11-2008, then why the petitioner had obtained his "SC" certificate just prior to holding of election ?
8. Why the petitioner was obtaining different caste certificates, just few days prior to the elections?
9. Whether the surname of the petitioner has been recorded in some of the documents as "Sandhu" or not?
10. If the earlier "SC" certificate was still in force, then why the petitioner obtained a fresh "SC" certificate on 6-11-2008?
71. The questions pertaining to obtaining Caste Certificates just prior to the elections are necessary in the light of the findings given by the Previous High Power Caste Scrutiny Committee, and the Collector, Guna that the petitioner is in habit of obtaining Caste Certificate for his political advantages.
72. In reply, it is submitted by the Counsel for the petitioner, that this petition has been filed by the petitioner challenging the order dated 16-9- 2013 and to the above mentioned questions put by the Court, there is no reply in the writ petition. However, it is submitted that in case the petitioner is granted an opportunity before the High Power Caste Scrutiny Committee, then he shall give answer to all the above mentioned questions. Thus, it is clear that serious questions which have arisen against the petitioner, have remained unanswered. This Court feels that in view of Direction 13.14 given by the Supreme Court in the case of Madhuri Patil (Supra), the petitioner may face penal consequences, therefore, it would be appropriate not to deny an opportunity to the petitioner to answer all the serious questions, including the above mentioned.
56 W.P. No.7047/2013
(Jaipal Singh Vs. State of M.P. and others)
73. Thus, even by holding that the petitioner had avoided the service of notices issued by the High Power Caste Scrutiny Committee and the paper publication was sufficient to hold that the petitioner was served by substituted service by publication, but as the petitioner was not aware of the date of hearing, and considering the fact, that the petitioner may suffer penal consequences, the matter is remanded back to the High Power Caste Scrutiny Committee for adjudication of the Caste Certificate of "SC" dated 6-11-2008, afresh. The High Power Caste Scrutiny Committee is directed to decide the matter afresh after issuing notice to the petitioner as prescribed under the guidelines.
74. By way of abundant caution, the High Power Caste Scrutiny Committee is directed not to get prejudiced by any of the observations made by this Court, in this order, and the matter should be decided strictly in accordance with the evidence which would come on record.
75. Now the next question for determination is that while remanding the matter back to the High Power Caste Scrutiny Committee, whether this Court should quash the order dated 16-9-2013, resulting in automatic revival of "SC" Certificate or not?
76. Once, this Court has come to a conclusion that the matter deserves to be remanded back to the High Power Caste Scrutiny Committee, then it has no option but to quash the order dated 16-9-2013.
77. However, as the petitioner has failed to answer the questions put by this Court so as to find out that whether any prejudice was caused to the petitioner or not, therefore, while remanding the matter back to the 57 W.P. No.7047/2013 (Jaipal Singh Vs. State of M.P. and others) High Power Caste Scrutiny Committee, this Court does not find it appropriate to restore back the "SC" Certificate dated 6-11-2008.
78. Accordingly, it is directed that till the decision is taken by the High Power Caste Scrutiny Committee, the "SC" certificate dated 6-11-2008 (Annexure P/7) issued in favour of the petitioner, shall remain in abeyance and the petitioner shall not be entitled to take advantage of the same.
79. The High Power Caste Scrutiny Committee is directed, that in case, it comes to a conclusion that the petitioner has wrongly obtained the "SC" certificate dated 6-11-2008, then it shall take further action as per the directions, including direction No.13.14, given by the Supreme Court in the case of Madhuri Patil (Supra).
80. With aforesaid observations, the petition is finally disposed of.
(G.S. AHLUWALIA)
Judge
Arun* 01/05/2019
ARUN KUMAR MISHRA
2019.05.02 14:41:24 +05'30'