Bombay High Court
Chhaya Namdeorao Binekar vs State Of Maharashtra And Ors. on 24 April, 2002
Equivalent citations: 2003(1)BOMCR689, (2003)1BOMLR345, 2003(3)MHLJ339
Author: R.S. Mohite
Bench: R.S. Mohite
JUDGMENT R.S. Mohite, J.
1. Heard the advocates for the respective parties.
2. The petitioner has filed this writ petition for a writ to quash an order passed by the Scrutiny Committee on 31-3-2000, which is annexed at Annexure 'A' to the petition. The petitioner has also prayed for the issuance of a writ, order or direction quashing the order of reversion dated 25-2-2002 issued as a consequence of the invalidation of the petitioner's caste claim and seeking a further direction to the respondents to accommodate the petitioner as belonging to special backward class in the two percent reservation provided as per the terms of the Government Resolution dated 15-6-1995.
3. This writ petition was fixed for final hearing on 14-2-2002. It was noticed that one of the points raised in this writ petition was as to whether direction No. 5 as contained in paragraph 13 of the Apex Court judgment in the case of Kum. Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors., , was not complied as the Police Vigilance Cell had not conducted the enquiry in accordance with the said direction No. 5 and had not conducted the investigation in accordance with what was required to be done as per the said direction No. 5.
4. I had noticed that this point was being raised in practically every petition being filed in this Court. Different judgments or orders passed by this Court were being cited by the advocates who urged this point in their petitions. Several writ petitions were admitted by this Court in view of the seemingly conflicting orders/judgments passed by this Court. At some stage, I felt the need to try and reconcile all the judgments and orders if possible so that the position of law could be settled. With this aim in view, on two occasions notice had been issued on the cause list calling upon the advocates to furnish the list of petitions to the office so that a special board could be prepared for hearing of advocates who had filed writ petitions raising the aforesaid disputed point. As a result in all 89 writ petitions were listed on a special board before me. The present writ petition was at the head of the list and the other writ petitions were those pending at various stages after filing and were listed along with this petition to enable a wider hearing of advocates whose petitions raised the aforesaid point, specially as the point in dispute, if decided, could have some bearing on their petitions. Accordingly, the advocates appearing in the present petition as well as the advocates appearing in the other listed petitions, who wished to address the Court were heard extensively on 3-4-2002 and 4-4-2002 and the judgment was then reserved.
5. The basic chronological facts of the present case are as under:
(a) On 19-2-1992, the petitioner was selected as a Junior Clerk/Typist by the Maharashtra Public Service Commission.
(b) On 11-3-1992, as a consequence of her selection, the petitioner was appointed as a Junior Clerk/Typist in a post reserved for a member of the Scheduled Tribe. It was inter alia mentioned in the appointment order that the caste certificate which had been submitted would be got verified from the Caste Scrutiny Committee.
(c) On 7-2-1994, the employer referred her caste certificate for verification to the Caste Scrutiny Committee at Nagpur.
(d) On 2-9-1994, the Supreme Court of India decided the case of Kum. Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors., therein giving guidelines relating to a more streamlined procedure which included the formation of a reconstituted Scrutiny Committee and provided for the establishment of a Police Vigilance Cell. Accordingly, by appropriate Government Resolutions (to which reference will be made at a later stage), new Scrutiny Committees were reconstituted and a Police Vigilance Cell was established, after which the case of the petitioner was referred to the Police Vigilance Cell for investigation.
(e) On 10-10-1995, in pursuance of notice given by the Caste Scrutiny Committee, the petitioner along with her brother appeared before the Caste Scrutiny Committee and filled up the proforma questionnaire on the same day. The statement of the petitioner and her brother were also recorded.
(f) On 19-1-1998, the petitioner was confirmed by her employer as a Junior Clerk/Typist with effect from 27-7-1995.
(g) On 3-5-1999, the petitioner was promoted as a senior clerk, however, even her promotion order expressly stated that her promotion was subject to the enquiry relating to her Caste certificate.
(h) On 29-9-1999, the Police Vigilance Cell submitted the report. In this report, it was stated that the father of the petitioner was illiterate but her father's brother by name Tukaram and three of her father's cousin brothers by name Madhukar, Prabhakar and Bhimrao had studied in New English School, Mahal, and Old Mangalwari Marathi Primary School between 1941 to 1963 and that entries in the School register in respect of these four relatives from her paternal side clearly show that their caste was 'Koshti'. That in the record of the New English School, the word 'Koshti' had been scratched out and the word 'Halba' was written later. That from these old documents, it could be seen that the caste of the petitioner was 'Koshti'. The Police Vigilance Cell report enclosed the extracts from the school registers and further stated that the petitioner had been born in 1950 and that while admitting her in school, her caste has been shown as 'Halba' and on this basis, she had obtained further certificates. It was concluded in the vigilance report that the petitioner did not belong to the Halba caste but was a 'Koshti'.
(i) On 25-10-1999, by a registered letter, the copy of the police vigilance report was supplied to the petitioner and notice was given to the petitioner, calling her for hearing on 19-11-1999.
(j) On 19-11-1999, the petitioner informed her inability to appear due to ill-health and, therefore, by a further registered letter dated 8-12-1999, the petitioner was given a fresh date of hearing on 29-12-1999.
(k) On 29-12-1999, the petitioner and her father appeared before the Caste Scrutiny Committee and filled up the detailed questionnaire which included answers regarding language, idols and deities, main festivals of the community, main characteristics and customs of the community, about jat panchayat and about customary dance of the community. On this questionnaire, the petitioner made a categorical endorsement that she did not wish to say anything in particular about the police vigilance report.
(Emphasis provided) (1) The petitioner also furnished five documents before the Scrutiny Committee, which were as under :
(1) Original copy of the Caste Certificate of the candidate issued by the Executive Magistrate, Nagpur, on 8-7-1987 (Caste mentioned as Halba).
(2) Xerox copy of the Secondary School Leaving Certificate in respect of the candidate issued by the Head Master, Prakash High School, Nagpur, on 9-7-1997 (caste mentioned as Halba).
(3) Original copy of the Certificate in respect of the candidate issued by the Secretary, Adiwasi Co-operative Credit Institute Limited, Nagpur, on 27-8-1994 (Caste is not mentioned).
(4) Original copy of the affidavit filed by the candidate's father, dated 6-10-1995.
(5) Xerox copy of the Validity Certificate in respect of Shri Nandkishor Ajabrao Ninave issued by the Chairman Scrutiny Committee, Pune on 29-7-1986.
(m) Ultimately, by the impugned order dated 31-3-2000, after referring to the enquiry report of the police vigilance cell and the documents annexed therewith and after dealing with all the five documents produced by the petitioner before them and after further dealing with the other information relating to socio cultural traits, characteristics, festivals and customs of the petitioner, the Caste Scrutiny Committee, Nagpur, came to the conclusion that the petitioner did not belong to Halba Scheduled Tribe and that as such, her claim towards the same was held to be invalid. The Caste Scrutiny Committee, therefore, cancelled and confiscated her Caste certificate showing that she belong to 'Halba' scheduled tribe, granted by the Executive Magistrate, Nagpur, on 8-7-1987.
(n) On 25-4-2000, in consequence of the order passed by the Scrutiny Committee holding that the petitioner did not belong to 'Halba' caste, Respondent No. 3 acting on behalf of Respondent No. 1, who was the petitioner's employer, reverted the petitioner as a junior clerk-cum-typist with effect from 31-3-2000.
(o) On 8-5-2000, the present petition came to be filed, seeking the two reliefs mentioned hereinabove.
(p) On 9-5-2000, this Court issued notice before admission and granted interim stay to the operation and effect of the impugned order until further orders.
(q) On 10-8-2001, the petition was admitted and the status quo was continued. I am informed that as a result of the interim orders passed by this Court, the petitioner was allowed to work on the post of a senior clerk.
6. In the aforesaid background, the petitioner filed the present writ petition. The first point urged in the petition, as already mentioned aforesaid was that the police vigilance cell had not conducted the enquiry in accordance with direction No. 5 of the Madhuri Patil's case. The averment in this regard made in the petition was contained in para 7 and ground 1 of the petition in the following terms :
"7. Be that as it may, the petitioner further submits that Police inquiry which has been conducted by the Police Vigilance Cell is not as per the Madhuri Patil's case. In para 5 of the judgment, it has been held by the Apex Court that 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 she originally hailed from. This 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 his caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the scheduled tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc. by the concerned caste or tribes or tribal communities, etc. Therefore, it is pertinent to submit at this juncture, that the police inquiry has not been conducted as per Madhuri Patil's case. What the Police Vigilance Cell has done, it only approached the school of the petitioner's guardian and obtained the school record therefrom. So the petitioner submits that enquiry report is not a conclusive evidence as a matter of fact it is incomplete and unsatisfactory.
(I) It is submitted that the Police Vigilance Cell has not conducted the inquiry in accordance with para 5 of Madhuri Patil's case. It merely approached the school of her uncles and got the school records therefrom. The Vigilance Cell has not done what is required to be done in terms of Madhuri Patil's case. It is nowhere mentioned about the anthropological and ethnological traits, deity, rituals, marriage ceremonies, etc. It has not examined the parents and such other persons who have the knowledge of the social status of the candidate. Nothing has been inquired by the scrutiny committee, its report is totally silent on this aspect. Therefore, the order passed by the scrutiny committee is contrary to the law laid down by the Apex Court and violative of Article 14 of the Constitution of India."
7. On behalf of respondents No. 1 and 2, submissions came to be filed on 7-6-2000. As regards the contentions relating to aforesaid first point, the reply on behalf of respondents No. 1 and 2 was as under:
"About Police Vigilance Report, the petitioner stated that she does not want to say anything. The Scrutiny Committee, therefore, evaluated the documents furnished by the petitioner in the light of Socio Cultural, Ethnic Linkage, Affinity Test, coupled with Police Vigilance Report and say of the petitioner on it; and give its finding vide order dated 31-3-2000. Thus, the Scrutiny Committee has followed all the norms laid down by Hon'ble the Supreme Court of India in Madhuri Patil's judgment."
8. It may be stated at this stage, after the admission of the petition, the respondents No. 1 and 2 have not filed a separate return but filed a pursis dated 4-4-2002, stating that the submissions filed by them as aforesaid may be treated as a return. On behalf of respondent No. 4 i.e. the Director of Accounts and Treasury, a separate return came to be filed. In this return, for the reasons stated therein, the petition was opposed and it was stated that since the petitioner had produced falsified documents for appointment, the office of respondent No. 4 would have no difficulty in taking action against the petitioner.
9. For deciding the first point raised by the petitioner in this case, it is necessary to give and understand the history and sequence of events that occurred after the decision of the Apex Court in the case of Kum. Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors., referred to supra. The important events which occurred in this regard and which have a bearing on the question required to be decided, are as under:
(a) On 2-9-1994, the Supreme Court of India decided the case of Kum. Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors. As the Supreme Court felt the need for the caste certificates to be scrutinized at the earliest and with utmost expedition and promptitude and as the necessity was felt to streamline the procedure for the issuance of social status certificate, the Supreme Court issued certain guidelines which can be found in para 13 of the judgment and which are reproduced 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 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 :
(Emphasis provided)
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 Office, 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 higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. (Emphasis provided)
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the 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 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-a-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 even 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 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 acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
After giving these guidelines, in para 14 of the same judgment, the Apex Court made further observations, which would have relevance and these observations were as under :
"Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons."
(Emphasis provided)
(b) The import of the 15 guidelines issued by the Supreme Court in the case of Madhuri Patil, referred to hereinabove, came up for consideration before the Apex Court in the case of Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri and another . In the aforesaid case, after reproducing all the 15 guidelines in Madhuri Patil's case, in para 8 of the judgment, the Apex Court stated as under:
"8. While reiterating the above guidelines to be workable principles, it is high time that the Government of India should have the matter examined in greater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and corner the benefits reserved for the real tribals, etc. etc., so that the menace of fabricating the false records and to gain unconstitutional advantages by plain/spurious persons could be prevented. Lest they would defeat the constitutional objective of rendering socio-economic justice envisaged under Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38 and 39"
(Emphasis provided)
(c) In view of direction No. 3 in Madhuri Patil's case, on 26-10-1995, the Government of Maharashtra issued a Government Resolution, regulating the manner in which persons seeking reserved seats could apply for admissions to the educational institutions mentioned in the Government Resolution.
(d) On 26-10-1995, by a separate Government Resolution, the Government of Maharashtra in execution of guideline No. 4 given by the Apex Court in Madhuri Patil's case, constituted three Caste Scrutiny Committees for Pune, Nasik and Nagpur. The said Government Resolution mentioned that the Home Department was taking steps to formulate the vigilance cell as per direction No. 5 of Madhuri Patil's case.
(e) By Government Resolution dated 7-3-1996, the State of Maharashtra in execution of direction No. 1, in Madhuri Patil's case, declared the Sub-Divisional Officer (Revenue) and the Deputy Collector or the concerned Collector as competent authorities for issuance of caste certificate.
(f) By Government Resolution dated 15-3-1996, the Government of Maharashtra sanctioned the posts required to be created for establishing three vigilance cells in accordance with direction No. 5, given by the Apex Court in Madhuri Patil's case and provided for their infrastructure.
(g) On 28-4-1997, the Apex Court decided LA. No. 3 of 1996, filed by the State of Maharashtra seeking four modifications in the judgment of the Apex Court delivered on 2-9-1994 i.e. in the case of Madhuri Patil By the subsequent judgment and order, , the Supreme Court rejected prayer (a) but granted prayers (b)(c) and (d). The modification granted by the Supreme Court can be found in paragraphs 3, 4 and 5 of the reported judgment and are reproduced hereunder as follows :
"3. As regards prayer (b) read with direction No. (iv) of the Order of this Court, we too appreciate inconvenience caused due to vast area of the State. Therefore, instead of one committee of three officers, there will be three Scheduled Tribe Caste Scrutiny Committees comprising of five members with quorum of three members as suggested in paragraph 4 of the directions, to take a decision. At Pune, Nasik and Nagpur, Six Caste Scrutiny Committees for SCs, Denotified Tribes, Nomadic Tribes, Other Backward Classes and the Special Backward Category in existence at Mumbai, Pune, Nasik, Aurangabad, Amravati and Nagpur would continue to scrutinise the certificates issued by the respective officers and take decision in that behalf. In this regard, it is also suggested by Shri Dholakia, learned senior counsel for the applicant that in case any certificate has been wrongfully refused by the certificate issuing authority, the aforestated Committees also would go into the question and decide in that behalf, whether refusal was wrongful and in case it finds that the refusal was wrongful, they are at liberty to direct the authority to grant the certificate.
4. With regard to prayer (c) also, we feel that the Caste Scrutiny Committees for Social Welfare, Cultural Affairs and Sports Department should comprise of Additional Commissioner (Revenue) - Chairman of the concerned Revenue Division, divisional Social Welfare Officer -Member; and Research Officer as a Welfare Officer Member-Secretary to function in that behalf.
5. With regard to prayer (d), along with the Vigilance Cell, one Research Officer/Tribal Development or Social Welfare Officer would be associated in finding the social status of eligibility of the officers."
(h) On 14-7-1997, in the light of the modifications given by the Supreme Court of India in the case of Kum. Madhuri Patil, the Government of Maharashtra issued a fresh Government Resolution reconstituting the Committees for verification and scrutiny of caste/tribe certificates. The translation of clauses 5 and 6 of this Government Resolution, which would have bearing on the issue with which we are now concerned was originally in the following terms:
"5, In regard to the scrutiny of the tribe certificates of scheduled tribe persons, the Government is also issuing orders that in accordance with the guiding principles given by the Supreme Court in Special Leave Petition No. 14767 of 1993 Civil Application No. 5854 of 1994 - Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, Thane and Ors. that the caste certificates of the Scheduled Tribe candidates, the cases of verification and scrutiny of claims along with all necessary documents shall be sent by the concerned educational institutions/different departments/ Selection Boards to the concerned Scheduled Tribe Caste Certificate Scrutiny Committee directly six months before the aforesaid candidate is admitted in the educational institutions or given an appointment in the government services. In this connection, the concerned Scrutiny Committee should launch immediate enquiry. In cases in which the Scrutiny Committee feels no doubts or suspicion, then in such cases within six months from the receipt of cases, interviews of the candidates should be taken. Thereafter, the doubtful or suspicious cases should be entrusted to the Vigilance Squad for enquiry and at the Vigilance Squad should complete the enquiry and at the most within a period of two months maximum should submit its report to the Scrutiny Committee. After perusal and scrutiny of the report in case the Scrutiny Committee finds that the tribe claims made by any candidate are false and untrue the Scrutiny Committee should first of all cancel the tribe certificates and confiscate the same and the candidate should be informed about this within a month therefrom.
6. The Scheduled Tribe Caste Certificate Scrutiny Committees should strictly and scrupulously follow and observe the above orders."
(i) On 23-7-1997, the Government of Maharashtra issued a corrigendum to the Government Resolution dated 14-7-1997, in which the Government made changes to the original para 5. The translation of para 5 as it would stand after the corrigendum dated 23-7-1997 would be as follows:
"5. In regard to the scrutiny of the tribe certificates of scheduled tribe persons, the Government is also issuing orders that in accordance with the guiding principles given by the Supreme Court in Special Leave Petition No. 14767 of 1993 Civil Application No. 5854 of 1994 -Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, Thane and Ors. that the caste certificates of the Scheduled tribe candidates, the cases of verification and scrutiny of claims along with all necessary documents shall be sent by the concerned educational institutions/different departments/Selection Boards to the concerned Scheduled Tribe Caste Certificate Scrutiny Committee directly six months before the aforesaid candidate is admitted in the educational institutions or given an appointment in the Government services. While considering the case of a Scheduled Tribe candidate regarding his caste certificate, the Scheduled Tribe Scrutiny Committee will immediately take appropriate steps in accordance with the guiding direction Nos. 6, 7, 8 and 9 in the case of Madhuri Patil v. Additional Commissioner, Tribal Development, Thane and Ors., The decision of the Scrutiny Committee shall be final.
(Emphasis provided)
(j) On 11-6-1998, the Government of Maharashtra issued a Government Resolution specifying the nature of work and duties of Scheduled Tribes Caste Certificate Scrutiny Committees at Pune, Nasik and Nagpur. Clause 1(10) of this Government Resolution would have a bearing on the dispute with which we are concerned and translation of the same is in the following terms :
"1(10). The concerned scheduled tribes caste certificate scrutiny committee shall adopt the procedure for verification of scheduled tribes caste certificate/caste claims as per the guidelines in paragraph Nos. 6, 7, 8 and 9 of the judgment passed by the Hon'ble Supreme Court of India in the matter of Ku. Madhuri Patil v. Additional Commissioner, Tribal Development, Thane and Ors.
(Emphasis provided)
(k) At this stage and in the aforesaid matrix of facts in law, on 20-7-1999, a writ petition being Writ Petition No. 2366 of 1999 in the case of Balu Nivrutti Karkud v. State of Maharashtra, came up for hearing on admission before D. K. Deshmukh, J. in this Court. The point raised in the aforesaid case was that the vigilance cell attached to the Caste Scrutiny Committee was not constituted as per Direction No. 5 issued by the Supreme Court in the case of Kum. Madhuri Patil and, therefore, the order passed by the Scrutiny Committee would be rendered invalid. While rejecting the petition, this Court gave reasons for not accepting the contentions raised before it in the following terms:
"It is clear from the judgment of the Supreme Court that the Vigilance Cell is directed to be constituted in aid of the duties to be performed by the Scrutiny Committee is based on the material collected by the Scrutiny Committee through the Vigilance Cell, the documents produced by the candidate and other material, in my opinion, merely because the vigilance Cell is not constituted as per the directions issued by the Supreme Court, will not by itself render the information and report supplied by the Vigilance Cell to the Scrutiny Cell invalid. It is for the Scrutiny Committee to consider the information and material that is supplied to it by the Vigilance Cell. Therefore, in my opinion, there is no substance in the submission made by the learned Counsel that non constitution of the Vigilance Cell attached to the Scrutiny Committee strictly in accordance with directions of the Supreme Court invalidates the order passed by the Scrutiny Committee. The petition is rejected."
(1) On 9-9-1999, the Government of Maharashtra issued and Government Resolution which said that it was superseding all the earlier orders. The said Government Resolution purported to issue a consolidated order and directed that before the verification of the caste certificate, all the concerned would comply with the said order. The said Government Resolution dated 9-9-1999 then went on to provide for the following :
(i) The constitution of various Caste Scrutiny Committees for Scheduled Tribes.
(ii) The quorum and requisites for hearing and interview by the Caste Scrutiny Committee.
(iii) The documentary evidence which a candidate must submit to the Committee for the verification of the Caste Certificate/Caste claim.
(iv) The provision for the Scrutiny Committee to call for additional documentary evidence.
(v) The general powers and duties of the Scheduled Tribes Caste Certificate Scrutiny Committee.
(vi) The procedure to be followed by students while seeking admission in medical, engineering and other educational institutions.
(vii) The procedure to be followed by the departments/offices for making appointments.
(m) It may be stated here that clause 4.2 of this Government Resolution was in the following term ;
"4.2. The Scheduled Tribes Caste Certificates Scrutiny Committee shall undertake the proceedings of verification of Scheduled Tribes Caste Certificates/Caste claims as per the guidelines given by the Honourable the Supreme Court of India in the matter of Kum. Madhuri Patil v. Additional Commissioner, Tribal Development, Thane and ors. (Civil Application No, 5854/94 in Special Leave Petition No. 14767/93)."
(Emphasis provided)
(n) On 8-9-2000, the case of Mayur Ashokrao Sonparote v. State of Maharashtra, reported in 2000(4) All MR 827, came up for consideration before A. M. Khanwilkar, J. In the said case, the third contention raised before this Court was in the following terms :
"The third contention raised is that there is nothing on record especially in the order or even the submission filed before this Court, to indicate that the procedure as envisaged by the Apex Court in Direction 5 of the decision , Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors. - case No. 1, has been duly complied with. The challenge is that, the person associated with the senior Deputy Superintendent of Police, for investigation was not competent, in that he was not Research Officer/Tribal Development or Social Welfare Officer, who alone could have been associated in view of the decision of the Apex Court , Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development, Thane and Ors. case No. 2. It is submitted that even the other requirements under direction 5 of the Madhuri Patil's case No. 1 of personal verification and examination and the relevant records as well as interviewing the candidates and his parents has not been complied with. Consequently, it is submitted that due to non-compliance of mandatory procedure, the order issued by the Scrutiny Committee is vitiated and deserves to be set aside."
This point was dealt with by this Court in paragraphs 6, 7 and 8 in the following terms :
"6. With regard to the ground of procedural non compliance, the learned counsel for the Caste Scrutiny Committee fairly submits that the impugned order, no doubt, does not specifically point out that the procedure as directed by the Apex Court has been complied with or that the person associated in the investigation along with the Vigilance Cell was qualified as per the requirement stipulated by the Apex Court. However, she submits that the impugned order refers to the Government Resolution dated 14-7-1997 which has restated the law declared by the Apex Court regarding the procedure to be followed. According to her, it could be safely presumed that the said procedure has been complied with.
7. It is distressing to observe that large number of writ petitions are filed in this Court assailing the decision of the Caste Scrutiny Committee mainly on the ground of non-compliance of procedural requirements provided for by the Apex Court in Madhuri Patil's case. This is one such case where the Caste Scrutiny Committee has not complied with the procedural requirement as directed by the Apex Court.
8. Having considered the rival submissions, I find that the written submission filed before this Court on behalf of the respondents do not specifically refute the grounds taken in the writ petition that there was utter non-compliance of the procedural requirements as pointed out above. Neither the impugned order nor the submissions filed before this Court indicate that the requirement in Direction 5 of the decision in Madhuri Patil's case No. 1 has been duly complied with. There is no statement on record to indicate that the person associated with the Vigilance Cell was qualified and fulfilled the necessary qualification stipulated by the Apex Court in the decision of Madhuri Patil's case No. 2. Besides that, there is no statement on record that the investigation and enquiry undertaken was fully in compliance with the procedure prescribed under Direction 5 of the decision in Madhuri Patil 's case No. 1. The writ petition should, therefore, succeed for this technical reason."
In the said matter, rule was issued and made returnable forthwith and the rule was made absolute inter alia on the footing that the substantial number of documents placed before the Committee had been discarded on the sole ground that the same were issued after the issuance of Scheduled Tribe Order, 1950. The matter was remanded back for further consideration. It may only be stated here that the order passed by D. K. Deshmukh, J. in the case of Balu Nivrutti Karkud, referred (supra) does not appear to have been cited and is not referred to in this judgment.
(o) On 16-2-2001, Writ Petition No. 1489 of 1999, Sharadchandra Harihar Paunikar v. The Director, Central Ground Water Board, Central Region and Ors. came up for hearing before J. N. Patel, J. The point relating to direction No. 5 which was raised in this writ petition can be found in para 2 of the judgment, which is in the following terms:
"2. Mr. Bhangde submits that several writ petitions have been admitted by this Court on identical questions. The challenge to the findings of the Caste Scrutiny Committee is on the basis that the Scrutiny Committee has not complied with the directions given by the Apex Court in Madhuri Patils case, Madhuri Patil v. Additional Commissioner, Tribal Development, and particularly attention of this Court is drawn to paras 5 and 6 of the reported judgment. It is submitted that the Police Inspector was deputed to investigate into the socio-status claims of the petitioner, has not carried out detailed investigation as contemplated and further the Director concerned has not applied his mind in the matter."
Brother J. N. Patel, J. gave his finding on the aforesaid point raised in para 4 of the judgment in the following terms :
"4. This Court finds that the investigation officer of the Police Vigilance Cell has carried out the investigation and was able to obtain documents to show that the caste claim of the petitioner is not justified. The requirements mentioned in para 5 of the judgment rendered in Madhuri Patil's case is broad guidelines given by the Apex Court and it is not necessary that all these aspects should be gone into by the investigating officer. The Investigating Officer can even go beyond the guidelines if he finds it necessary for ascertaining the real caste of the petitioner. In the present case, the matter has been properly dealt with by the authorities. As such, there is no merit in the petition. Hence, the petition is dismissed."
From the judgment it is clear that the order passed by D. K. Deshmukh, J. in Writ Petition No. 2366 of 1999 as well as the judgment delivered by A. M. Khanwilkar, J. in the case of M. A. Sonparote were probably not cited and in any case not referred to in the order passed by J. N. Patel, J. in Writ Petition No. 1489 of 1999.
(p) On 19-6-2001, in Writ Petition No. 2923 of 2000 i.e. Atul Dinnanath Pathrabe v. State of Maharashtra came to be decided by A. B. Naik, J. Only one point was raised i.e. that the vigilance cell was not constituted as per direction No. 5 given by the Apex Court in the case of Madhuri Patil It can be seen from the judgment that in that case it had been contended on behalf of the Scrutiny Committee that the Police Vigilance Cell consisted of two Research Officers. However, the case was decided on the footing that the record produced before the Court did not indicate that the Research Officer had assisted the Police Officer and that the statements of persons visiting the village had been recorded in the absence of Research Officer, which was clear-cut breach of the law laid down by the Apex Court referred to above. The Court concluded that in view of this, the vigilance cell is not valid in the eye of law, therefore, the finding based on the said report was required to be set aside and the matter was required to be remanded. The relevant portion of the order of A. B. Naik, J. in the aforesaid matter is reproduced hereunder:
"Only one point is raised by Shri Phadnis, challenging the order. He contended that the committee has considered the report submitted by police vigilance cell and based its finding on the vigilance cell report. The vigilance cell was not constituted as per the directions issued by the Apex Court in Madhuri Patil v. Additional Commissioner, Tribal Development, Thane, . This order is passed by the Apex Court in application filed by the State of Maharashtra for recalling the earlier judgment of the Apex Court, . The Apex Court, in the said order has rejected most prayers made, but however prayer (d), was granted, and the Apex Court directed that:
"5. With regard to prayer (d), along with the Vigilance Cell, one Research Officer/Tribal Development or Social Welfare Officer would be associated in finding the social status of eligibility of the officers."
I have seen the vigilance report which is filed along with the reply by the Committee. I found that the said report is submitted by the Police Inspector, Vigilance Cell, in the reply which is filed by the committee, a positive stand is taken in the following manner in this aspect.
"It is further submitted that the Police Vigilance Cell consists of two Research Officers, other than the Research Officers, as member in the Scrutiny Committee."
In the record which is produced before me, does not indicate that the Research Officer has assisted the Police Officer. The Vigilance cell recorded the statement of the persons, on visiting the village of the petitioner, but in absence of Research Officer. This is clear cut breach of the law laid down by the Apex Court, referred to above. In view of this the vigilance report based on the said report are required to be set aside. Accordingly, the order passed by the Committee dated 30-5-2000, is set aside, matter is remanded back to the Committee. The Committee shall direct the police vigilance to submit its report, and the vigilance team should be in accordance with the directions of the Apex Court, in 2nd Madhuri Patil's case. In view of this Rule is made absolute, order passed by the Committee dated 30-5-2000 is set aside, matter is remanded back to the Committee."
(q) On 23-5-2001, State of Maharashtra published an Act providing for the regulation of the issuance and verification of the Caste Certificates to the persons belonging to the Scheduled Castes, Scheduled Tribes, denotified tribes, Nomadic tribe, other backward classes and special backward category.
(r) On 1-8-2001, a Civil Revision Application was decided by V. C. Daga, J. in the case of Pralhad Banduji Lodhi v. Collector and District Magistrate, reported in 2001(3) Mh.L.J. 812. In that case in spite of Direction No. 11 in Madhuri Patil's case to the effect that the order passed by the Committee shall be final and conclusive, only subject to the proceedings under Article 226 of the Constitution of India and direction No. 12 to the effect that no suit or proceedings before any other authority should lie, the petitioner in that case filed a suit challenging the order of the Caste Scrutiny Committee, regretting his caste. While considering the effect of direction Nos. 11 and 12 which were in issue, in paras 10, 11 and 12 of the said judgment V. C. Daga, J. held as follows:
"10. In the aforesaid backdrop the question which needs consideration is: what is the binding effect of the Supreme Court guidelines laid down in the case of Madhuri Patil (supra) on touchstone of Article 141 of the Constitution of India? The guidelines provided by the Apex Court are binding on all concerned persons; whether they were parties or not, as held by the Apex Court in Anil Kumar Neotia v. Union of India, . It will not out of place to mention that "in the hierarchical system of courts" which exists in our country, "it is necessary for each lower tier" including the High Court, "to accept loyally the decisions of the higher tiers". "It is inevitable in hierarchical system of courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all members of the judiciary. But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted". The better wisdom of the court below must yield to the higher wisdom of the court above as held by the Supreme Court in the matter of C.C.E. v. Dunlop India Ltd., .
11. The law laid down by the Supreme Court is deemed to have been incorporated in the statute in absence of any contrary statutory provision as held by the Supreme Court in Harbanslal v. M. L. Wadhera, . It can only be rendered ineffective by subsequent legislative amendment, as observed by the Apex Court in Baliram v. Justice B. Lentin, . In nutshell, general legal position and/or guidelines laid down by the Supreme Court would be binding on all concerned even though they were not parties to the decision.
12. In view of the above legal position emerging from the various judgments, it is clear that the judgment in Madhuri Patil's case being the law laid down by the Supreme Court is binding on all the persons under Article 141 of the Constitution. In revisional jurisdiction, this court is entitled to take into consideration any change in law as held in Kotturuswami v. Veeravva, . In appeal and/or revision, the Court can take judicial notice of the law prevailing on the date of the order or judgment and mould the relief accordingly taking judicial notice of change in law during pendency of appeal and/or revision as laid down by the Supreme Court in Karansing and Ors. v. Bhagwansing and Ors., (1965) 7 SCC 559 and P. Venkateswarlu v. Motor and General Traders, . Thus, I concur with the ultimate conclusion of the Courts below, may be for the different reasons recorded herein. I, therefore, hold that the Courts below were justified in holding that the Civil Court had no jurisdiction to entertain and try the suit in question, however, the reasons recorded by them are set aside."
(s) By a Notification dated 17-10-2001, the aforesaid Act has been brought into force with effect from 18-10-2001. By further notification dated 21-12-2001, the Tribal Development Department of the Government of Maharashtra has published the draft rules known as "The Maharashtra Scheduled Caste and Scheduled Tribes, Denotified Tribes, Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance of Notification) Caste Certificate Rules, 2001. As regards these rules, objections and suggestions were invited by the Government before 31-1-2002 and I am informed by the advocate appearing for the Caste Scrutiny Committee that these rules have not yet come into force.
10. In the aforesaid background of facts and development of law, the first question to be decided is relating to the nature and effect of direction No. 5 given in the Madhuri Patil's case.
11. Before I give my findings and conclusion on this first point, I must deal with the preliminary objection raised by Shri Madkholkar, advocate for the petitioner. He urged me to refer this matter to the larger bench and not decide this point at all. He relied upon two judgments which I propose to deal with.
12. The first judgment is of the Apex Court in the case of Dr. Vijay Laxmi Sadho v. Jagdish, reported in 2001(1) Scale 63. The ratio of the case as relied upon by the advocate for the petitioner can be found in paragraphs 28, 29 and 33 of the said judgment, which read as under :
"28. It appears that the earlier judgment of the learned Single Judge in Devilal's case (supra) was brought to the notice of the learned Single Judge hearing Jai Bhansingh's case. The learned Judge in the later case notice the identical nature of the two cases but did not share the view of the Bench in Devilal's case and a contrary view was expressed. It was observed ;
"It may be noticed that although like cases should be decided alike but this principle is not in absolute rule nor of universal application. It does admit exceptions. Where there is no discussion regarding applicability of the relevant statutory provisions and the decision has been reached by a Bench in the absence of knowledge of a decision binding on it or a statute and in either case it is shown that it, it must have reached a contrary decision, it is clearly a case of a decision per incuriam which has no binding effect. This principle does not extend to a case where if different arguments had been placed before it, it might have reached a different conclusion."
29. We are unable to appreciate as to how the judgment in Devilal's case could be styled as "per incuriam".
33. As the learned Single Judge was not in agreement with the view expressed in Devilal's case, it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of co-ordinate jurisdiction disagrees with another Bench of Co-ordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
13. The second judgment referred to by Counsel for the petitioner is State of Andhra Pradesh v. V.C. Subbarayudu and Ors., reported in 1998(1) Scale 170, wherein the relevant portion of para 10 reads as under :
"On the basis of this background, it was submitted before us that since the judgment of the learned single Judge in writ petitions filed by the SAS Accountants had been affirmed in appeal earlier by Division Bench, the second Division Bench could not have dismissed the writ petitions and set aside the judgment and order of the learned single Judge. We, are not going into the validity of the orders passed by the two Division Benches as SAS Accountants did not come up in appeal in this Court against the order of the Division Bench subsequently made dismissing the writ petitions. We would, however, only like to say the second Division Bench if it was of the opinion that it had to take a different view than that taken by the first Division Bench the matter should as a matter of propriety have been referred to a larger bench. It is certainly a question of self-discipline which court should observe."
14. As against this, it is well settled that the rule of precedents admits of several exceptions, some of which are as under:
(a) When the decision is per incuriam i.e. in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong, [see A. R Antulay v. R. S. Nayak, ].
(b) When the decision is sub silentio i.e. when a particular point of law is involved in the decision, was not perceived by the Court or present in its mind (see State of U.P. v. Synthetics and Chemicals Ltd.) or is given without any argument, without reference to the crucial words of the rule and without citation of the authority (see Lancaster Motor Company v. Bremith Limited (941) 1 KB 675, as approved in Municipal Corporation of Delhi v. Gurnam Kaur , in which the Apex Court further observed that uniformity and consistency are core of judicial discipline but that which escapes in the judgment without any occasion is not ratio decidendi.
(c) When the decision is based on concessions by counsel [see Kulwant Kaur v. Gurdayalsingh Maan ].
15. It can be observed that in the present case, orders/judgments which have been cited are very short and cryptic. They all seem to have been passed in order to summarily decide the case in hand on the spot without any detailed discussion on the nature and effect of the guidelines laid down by the Apex Court in the case of Madhuri Patil. Unlike the two Supreme Court judgments cited, this is not a case where I am confronted with a well reasoned contrary judgment or order, which takes into account all the relevant and applicable provisions relating to the point in issue. That none of the orders/judgments referred or took into account the earlier orders/judgments of this Court. Apart from this fact, I find that in none of them, there is a reference to paragraph 8 of the Apex Court judgment in the case of Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri and Anr., which expressly dealt with 15 guidelines referred to in the case of Madhuri Patil and in terms held the aforesaid guidelines to be workable principles. Besides, none of these orders/judgments dealt with or took into account the effect of the Government Resolution dated 14-7-1997 read with the corrigendum dated 23-7-1997, Government Resolution dated 11-6-1998 and G. R. dated 9-9-1999 which three Government Resolutions amongst others were promulgated under Article 162 of the Constitution of India, to give effect to the directions in Madhuri Patil's case as per the express direction given by the Supreme Court in paragraph 14 of the judgment in the said case. To this extent the aforesaid orders/judgments are per incuriam as well as sub silentio insofar as the point in issue is concerned.
16. Apart from this, the first reasoned order given by this Court by D. K. Deshmukh, J. in the case of Balu Nivruti Karkud (referred to supra) on 20-7-1999 proceeded on the footing that the non constitution of the vigilance cell as per Direction No. 5 in the case of Madhuri Patil would not by itself render the information and report supplied by the vigilance cell as invalid and would not invalidate the order passed by the Scrutiny Committee. It is an order which would support my ultimate finding in this case.
17. The judgment given by brother A. M. Khanwilkar, J. in the case of Mayur v. Ashok Sonparote (supra) proceeded on the footing that there was no statement on record to indicate that the person associated with the vigilance cell was qualified and fulfil the necessary qualifications stipulated by the Apex Court in the decision of the Madhuri Patil's case No. 2 and that there was no statement on record that the investigation and enquiry undertaken was fully in compliance with the procedure prescribed under direction No. 5 of the decision of Madhuri Patil's case No. 2. This judgment does not specifically deal with the nature and effect of the directions given by the Supreme Court in the case of Madhuri Patil as dealt with by the subsequent decision of the Supreme Court in the case of Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri (supra) and further does not deal with the effect of the three Government Resolutions of 1997, 1998 and 1999 referred to hereinabove, passed by the Government in order to give effect to certain directions, in pursuance of an express direction contained in paragraph 14 of the Madhuri Patil's case.
18. The judgment delivered by brother J. N. Patel, J. in the case of Writ Petition No. 1489 of 1999 decided on 16-2-2000, the ultimate conclusion was that the requirements of direction No. 5 in the Madhuri Patil's case were general guidelines given by the Apex Court and it was not necessary that all these aspects should be gone into by the investigation officer. That the investigating officer can even go beyond the guidelines if he finds it necessary or ascertains the real caste of the petitioner. This order supports the conclusion which I have reached in the present case and, therefore, I do not propose to say anything more about it.
19. In the case of Atul Dinanath Pathmbe, in W. P. No. 2923 of 2000, decided by A. B. Naik, J. on 19-6-2001, once again the matter was decided only on the limited ground that the record did not indicate that the Research Officer had assisted the Police Officer and the Vigilance Cell recorded the statement of the persons on visiting the village of the petitioner but in the absence of the Research officer, which was a clear-cut breach of the law laid down by the Apex Court. This judgment also does not deal with the nature and effect of the guidelines contained in para 14 of the Madhuri Patil's case, the judgment of the Supreme Court in the case of Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri (supra) or the effect of the three Government Resolutions passed in 1997, 1998 and 1999.
20. The last judgment cited before me i.e. the judgment passed by brother V. C. Daga, J. in the case of Pralhad Banduji Lodhi v. Collector and District Magistrate (supra), did not directly concern the direction No. 5. In fact it concerned direction Nos. 11, 12 and 13, which were held to be binding. As further discussion will show that this judgment also supports the conclusion which I have reached in the present case. In any case this judgment also does not deal with the nature and effect of the guidelines contained in para 14 of the Madhuri Patil's case.
21. In the result I find that the orders/judgment cited, would not come, in the way in deciding the present case and would not require reference to the larger bench. With these observations, I refer back to the analysis to the directions given by the Apex Court in the case of Madhuri Patil.
22. A glance of the said directions indicates that they can be broadly categorised into two groups :
(a) General directions which include directions to candidates, their parents, guardians, educational institutions and appointing authorities and which required no further act of the State concerned to give effect to them. In this category clearly fall direction Nos. 1 (part - concerning name of the officer to whom the application is to be made), 2, 3, 10, 11, 12, 13, 14 and 15.
(b) Directions issued to the State Governments and State Government bodies like the vigilance cell and the scrutiny committee, which were required to be created by the State Government in order to give effect to the said directions as specifically directed by the Supreme Court in para 14 of the Madhuri Patil's case. In this category clearly fall direction No. 1 (part - naming certain Government Officers to be those authorised to issue caste certificates), 4, 5, 6, 7, 8 and 9, which would have to be given effect to either by the executive or the legislature.
23. It is further clear that the Supreme Court in the subsequent case of Director of Tribal Welfare v. Government of Andhra Pradesh v. Laveti Giri and Anr. (supra) held these directions to be guidelines in the nature of workable principles. This coupled with the fact that the Apex Court in para 13 categorically stated that the procedure laid down "may be as suggested" and followed it up by stating in para 14 of the Madhuri Patil's case to the fact that the procedure suggested by the guidelines "could be fair and just", and that "every State concerned should endeavour to give effect to it" leads me to conclude that whereas the directions in Clause (a) in para 22(a) hereinabove were declaratory and mandatory per se, insofar as directions in the second category specified in para 22(b) hereinabove i.e. directions Nos. 1 (part), 4, 5, 6, 7, 8, and 9, what was mandated by the Supreme Court was that the States concerned should give effect to these directions in a suitable manner. To my mind, the State were required to give effect to these directions either in exercise of the executive powers of the Stale under Article 162 of the Constitution of India or by appropriate legislation. In fact this is what was done by the State of Maharashtra by promulgation of the several Government Resolutions referred to hereinabove passed with the specific and manifest intention of giving effect to the directions as given to it by the Apex Court in the case of Madhuri Patil.
24. On an analysis of the subsequent and consequent Government Resolutions passed by the State of Maharashtra , it is clear that the State of Maharashtra is in substantial compliance with the directions given by the Supreme Court e.g. :
(a) the officers mentioned in direction No. 1 (with some small minor variation) have been empowered to issue caste certificate vide Government Resolution dated 7-3-1996;
(b) the Scrutiny Committees were constituted as per direction No. 4 vide Government Resolution dated 26-10-1995 as updated by Government Resolutions dated 14-7-1997 and 9-9-1999;
(c) the posts for constitution of vigilance cell were sanctioned by promulgating Government Resolution dated 15-3-1996, complying with the former part of direction No. 5;
(d) direction Nos. 6, 7, 8 and 9 were adopted in toto by virtue of para No. 5 of the Government Resolution dated 14-7-1997 (as amended by Corrigendum dated 23-7-1997), para 1(10) of the Government Resolution dated 11-6-1998 and para 4.2 of Government Resolution dated 9-9-1999 and have thus become mandatory.
25. It appears that while giving effect to the directions of the Supreme Court, the State of Maharashtra has not given effect to the later portion of direction No. 5 which deals with the exact manner in which the investigation is required to be carried out by a Police Inspector and Vigilance Officer. The relevant words in direction No. 5 as given by the Apex Court were as under :
"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 parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc."
26. In my view, since the State of Maharashtra has not specifically given effect to this part of direction No. 5 of the Supreme Court in its Government Resolutions, as reproduced hereinabove and in its wisdom, it has left the manner of its investigation to be carried out by the vigilance cell to be an open question. The manner of investigation need not be strictly in accordance with the exact words of the Supreme Court as reproduced hereinabove. and that merely because the investigation is not carried out strictly in accordance with the wordings of the Supreme Court referred to hereinabove, that by itself would not vitiate the final order of the Caste Scrutiny Committee, which would be subsequently passed after giving full opportunity to a claimant the petitioner to put forward his case regarding his caste, to receive the copy of the vigilance cell report with all annexures and even to point out the lacuna, if any, in the vigilance cell report and its enclosures, before the Scrutiny Committee. This, however, would not mean that the vigilance cell has a licence to carry out an investigation which is slipshod, negligent or unfair.
27. I feel that the vigilance cell investigation and its report were clearly mean to be an internal aid for the benefit of the Scrutiny Committee and that direction No. 6, which has in fact being given effect to by the State of Maharashtra as mentioned hereinabove, clearly and full safeguards the interest of any candidate who appears before the Scrutiny Committee in a proceeding relating to the establishment of his caste.
28. To further elaborate the point, it will not be open to any person to contend that the ultimate order of the Caste Scrutiny Committee is vitiated merely because the investigation has not been carried out strictly in accordance with the relevant wording given in direction No. 5 as reproduced hereinabove. If there is any lacuna in the vigilance cell report or in the documents enclosed therewith, it is always open to the concerned person to bring this to the notice of the Scrutiny Committee in the enquiry contemplated under the direction No. 6. The aforesaid wordings of the Supreme Court pertaining to the manner in which the investigation is required to be carried out cannot be read as if they are a part of a statute.
29. Thus, in my opinion, the ultimate order of the Scrutiny Committee would not be vitiated :
(a) If the Research Officer did not accompany the Police Officer to the actual field of investigation. In fact this is not even contemplated in direction No. 5. All that was "required in para 5 of the clarificatory judgment of the Supreme Court was that one Research Officer/Tribal Development or Social Development Officer would be associated in finding the social status of the eligibility of the claimant. To my mind the energies of the Research Officer would be better utilised by analysing the material collected in the field by the Police Inspector/ Vigilance Officer.
(b) That the investigation of the vigilance cell need not be strictly in accordance with the relevant words as contained in direction No. 5 and as reproduced above.
(c) There can be flexibility in the manner in which the investigation should be carried out as long as the investigation is not slipshod, negligent or unfair.
30. The second point which has been urged in this petition is that even assuming that the order of the Caste Scrutiny Committee is held to be correct, the service of the petitioner is protected in view of Government Resolution dated 15-6-1995 issued by the General Administration Department of the Government of Maharashtra as modified by Government Resolution dated 24-7-1998 and Government Resolution dated 15-3-2000 of the same department.
31. On a conjoint reading of the aforesaid three Government Resolutions, it is found that several castes including Koshti and Halba Koshti have been put into a special category named as the Special Backward Category. The Government of Maharashtra vide Government Resolution dated 15-6-1995 has made provision concerning two percent reservation for this "Special Backward Category". This two percent reservation was in fact earlier made by Government Resolution dated 8-12-1994 but had subsequently been stayed by Government Resolution dated 2-9-1995. On 2-9-1995, the said stay was vacated and by paragraph 4 of the Government Resolution dated 15-6-1995, it was further provided as under :
"4. As has been mentioned above, reservation granted to 'Special Backward Category' will be applicable for direct recruitment and promotions in Government service and the principle of creamy layer will not be applicable to this category. The persons/candidates under this category who have already been in service on the basis of caste certificate belonging to Scheduled Tribe and have obtained promotions will not be reverted or removed from the service."
32. By the Government Resolution dated 24-7-1998, the protection given under the Government Resolution dated 15-6-1995 has been extended to all appointments made before 24-7-1998 and by the further Government resolution dated 15-3-2000, the protection against reversion has been further extended if the promotion was made before 15-3-2000. It appears to me that the effect of these three Government Resolutions is to inter alia protect the services of even such persons who had obtained employment on the basis of false and fabricated caste certificates indicating that they belong to Scheduled Tribe, when in fact they did not belong to such Tribe.
33. On the face of it, the power of the State of Maharashtra to issue such Government Resolutions creating special backward category and making no exception in the case of persons who had obtained false and fabricated caste certificates, is a matter which appears to be against the wording and spirit of direction No. 15 in Madhuri Patil's case which is mandatory per se and can be seriously debated, but I do not intend to go into this question as the validity of the said Government Resolutions is a matter which may have to be gone into by a Division Bench. However, I wish to make two things absolutely clear.
(a) The existence of such Government Resolutions will not save a person from prosecution as contemplated by direction No. 14 in the case of Madhuri Patil as the offence of making a false claim is completed and is not washed away by promulgating Government Resolutions protecting the services of such persons.
(b) It is obvious that the three Government Resolutions as aforesaid, cannot ipso facto grant automatic protection to any person only by the placing of reliance on them in a Court. This is so because there is only two percent reservation which is granted to the Special Backward Category. The benefit of the three Government Resolutions are extended to the persons not only in Government service but also to the Municipal Corporations, Zilla Parishads, Corporate Banks, Government Undertakings and Educational Institutions etc. Each of these category of employers will have to check the existing number of employees who are already employed in the Special Backward Category. For example, it is not difficult to contemplate a situation where the two percent reservation may already have been exhausted and in such a situation, the Court obviously cannot automatically grant the benefit of three Government Resolutions merely because the same are relied upon in the petition and protection is claimed under them. In each case it would be a matter of investigation for the employer to first find out whether the two percent reservation has been exhausted or there is room for protection. Besides, even if there is room for protection, the employers will have to lay down reasonable criteria as to who can be granted protection in case only a few persons can be protected under these Government Resolutions. All these are matters which will have to be looked into by the employers before a person can be given benefit of the protection under the three Government Resolutions referred to hereinabove.
34. I have been shown certain judgments passed by this Court, in connection with this contention. Reliance was placed on a judgment passed by A. B. Palkar, J. in Writ Petition No. 854 of 1999 and judgment dated 27-11-2001 passed by Mrs. R. P. Desai, J. in Writ Petition No. 5161 of 2001. It was contended that in these judgments, protection was granted on the basis of Government Resolution dated 15-6-1995. On a plain reading of these judgments it is clear that in those cases no reference was made to the earlier Government Resolution dated 8-12-1994 which limited the reservation for Special Backward Category at two percent. The judgment cited, therefore, do not take into account a situation where two percent reservation is either exhausted or where the number of persons claiming protection exceeds the balance available reservation and to this extent are silent on this aspect.
35. In the circumstances, I am not inclined to consider the grant of prayer Clause (b) as prayed for in this petition.
36. On the merits of the case, it is absolutely clear that there is no infirmity in the finding of the Scrutiny Committee. All documents produced by the petitioner in this case were dealt with by the Scrutiny Committee. In fact, out of five documents, the first document was the Caste Certificate under consideration. The document No. 2 was a xerox copy of School Leaving certificate dated 9-7-1997 which could have been obtained on the basis of the impugned certificate. In the third document, the caste was not mentioned. Fourth document was the affidavit of the candidate's father dated 6-10-1995 which would have no value and the fifth document was the validity certificate in favour of one Ninawe, issued by the Chairman, Scrutiny Committee, Pune but as held by the Scrutiny Committee, the petitioner could not establish her relationship with Shri Ninawe. Besides this, as held by the Scrutiny Committee, it transpired during the investigation that School certificates of the petitioner's uncle and her-father's cousin brother indicated that they belong to Halba Koshti. In fact there were mutations made in the School Registers and the word 'Koshti' was scored out. All these are prima facie indications of an attempt to secure a false caste certificate.
37. In the circumstances, I find that there is no merit in this writ petition and the same is rejected. However, there shall be no order as to costs.
38. For the purposes of record, writ petitions which were listed and in which an opportunity was given to the concerned advocates to address the Court as stated hereinabove, are as follows :
Writ Petition Nos. 3307/1997, 1802/1998, 2669/1998, 3036/1998, 3572/1998, 492/1999, 2773/1999, 3739/1999, 1496/2000, 1714/2000, 1793/2000, 2027/2000, 2105/2000, 2199/2000, 3125/2000, 3129/2000, 4036/2000, 896/2001, 1173/2001, 1246/2001, 1456/2001, 1478/2001, 1504/2001, 1669/2001, 1795/2001, 1922/2001, 2003/2001, 2060/2001, 2087/2001, 2355/2001, 2676/2001, 2890/2001, 3241/2001, 3371/2001, 3419/2001, 3556/2001, 3559/2001, 3570/2001, 3606/2001, 3649/2001, 3715/2001, 3745/2001, 3746/2001, 3747/2001, 3757/2001, 3790/2001, 3815/2001, 3902/2001, 3972/2001, 3985/2001, 3992/2001, 3993/2001, 4023/2001, 4042/2001, 4046/2001, 4059/2001, 4094/2001, 4172/2001, 4181/2001, 4183/2001, 4239/2001, 4288/2001, 4295/2001, 4299/2001, 4300/2001, 4386/2001, 4401/2001, 4409/2001, 48/2002, 168/2002, 226/2002, 283/2002, 294/2002, 299/2002, 324/2002, 441/2002, 451/2002, 582/2002, 665/2002, 812/2002, 873/2002, 880/2002, 986/2002, 1109/2002, 1312/2002, 1313/2002, 1314/2002 and CA No. 1962/2002 in MCA ST No. 6644/2002 in W. P. No. 1180 of 2001.
Petitioner not to be reverted till 17-6-2002.