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FACTUAL MATRIX 3 The Petitioners herein contested the elections to the Mumbai Municipal Corporation from different wards in the seats meant for the reserved category. The Petitioners at the time of filling up the nomination form submitted their caste certificates which they claimed were issued by the Competent Authority. The Petitioners had submitted the said caste certificates for verification to the concerned Caste Scrutiny Committees. The Petitioners contested the elections to the Mumbai Municipal Corporation and were declared as elected from different wards, which results were declared on 22-7- 2017. It seems that some of the Petitioners had submitted their caste certificates for verification and since no decision was communicated by the concerned Scrutiny Committees, the Petitioners have filed the above Writ Petitions in this Court claiming the relief that no coercive action be taken against the Petitioners on the ground that the caste validity certificates were not produced by the Petitioners. It seems that it is during the hearing of the Petitions that the Learned Counsel for the Complainants had produced the mmj 9 of 35 wp-145-18&ors copy of the order passed by the Scrutiny Committees, upon which leave to amend the Petitions was granted so as to challenge the order passed by the Scrutiny Committees and ad-interim relief was also granted that no coercive steps be taken against the Petitioners on the basis of the order of the Caste Scrutiny Committees. The Petitioners accordingly amended their Petitions and have now laid a challenge to the orders passed by the Caste Scrutiny Committees on such grounds as are available to them. One of the grounds of challenge is the ground that the reports of the Vigilance Cells which have been submitted have not been submitted with the endorsement of the Deputy Superintendents of Police of having accepted the said reports and therefore the reports of the Vigilance Cells could not have been taken into consideration by the Caste Scrutiny Committees and having done so by the Caste Scrutiny Committees, the orders passed by the Caste Scrutiny Committees in each of the above Petitions are vitiated on the said ground. There are other grounds on which the orders passed by the Caste Scrutiny Committees are under challenge. However, all the Learned Counsel were ad-idem that the issue that is required to be addressed at the outset is the issue arising out of the ground adverted to hereinabove. We therefore proceeded to address the said issue. 4 In so far as the said ground of challenge is concerned, an Affidavit in Reply has been filed by the State Government as well as the Respondent No.5 i.e. the Complainant. In the reply filed on behalf of the State mmj 10 of 35 wp-145-18&ors Government by Smt Mamta S. Shere, Research Officer, District Caste Certificate and Scrutiny Committee Mumbai City. It is stated that pursuant to the decision of the Division Bench of this Court sitting at Nagpur in PIL No.91 of 2016, the post of Deputy Superintendent of Police attached to the Vigilance Cell was reinstated and by Government Resolution dated 11-11-2016 the Vigilance Cell was reconstituted as per Rule 12 and the Vigilance Cell now consists of Deputy Superintendent of Police, Police Inspector and Police Constable. It is further stated that by office order dated 4-2-2017 of the Directorate General of Police additional charge of the Deputy Superintendent of Police for respective committees is given to the persons whose names are mentioned in the said order dated 4-2-2017 till the regular appointments of the Deputy Superintendent of Police are made. It is stated that in so far as Mumbai city is concerned, Shri B. S. Indulkar was given additional charge as Deputy Superintendent of Police, Vigilance Cell. It is further stated that the said officer was transferred on the regular course by transfer order dated 29-4- 2017 and was relieved from his charge on 5-5-2017. It is further stated that the Vigilance Cell after carrying out inquiry and verifications submitted the Vigilance Report on 28-6-2017, under the signature of the Inspector of Police. It is further stated that the Vigilance Cell Report is not binding on the Caste Scrutiny Committee as per Rule 17(7) of the 2012 Rules. It is further stated that the Caste Scrutiny Committee is empowered to issue validity certificate without calling for the Vigilance Cell Report if prima facie material produced mmj 11 of 35 wp-145-18&ors and documents are found to be genuine. It is further stated that as per Rule 12(3) the Vigilance Cell works under the control and supervision of the concerned Caste Scrutiny Committee. It is lastly stated that the Petitioner has not taken any objection to the Vigilance Report at the time of hearing which took place before the Caste Scrutiny Committee. It is also stated that neither in the Act nor in the Rules there is any provision for the report being required to be approved by the Deputy Superintendent of Police and/or is required to be signed by the Deputy Superintendent of Police. 5 In the reply filed on behalf of the Respondent No.5 who was the Complainant, apart from questioning the manner in which the Petitioner has obtained the caste certificate as belonging to Koyari Caste and the Petitioner's entitlement to a certificate belonging to the other backward class. It is stated that the Petitioner having never objected to the Vigilance Cell Report before the Caste Scrutiny Committee is now estopped from challenging the said report in view of her acquiescence waiver. It is further stated that since the Respondent No.4 committee was not agreeable to the report, it issued a show cause notice dated 23-6-2017 to the Petitioner to which show cause notice the Petitioner filed a reply and contended that the report is in favour of the Petitioner. It is lastly stated that the decision making process of the committee is based upon the material on record, it has recorded pure findings of fact and therefore interference of this Court is not warranted.
the Vigilance Cell Reports and since the Vigilance Cell Reports have been taken into consideration by the Caste Scrutiny Committees, the orders impugned in the above Petitions stand vitiated on the said ground and therefore the issue as regards the verification of the Caste Certificates of the Petitioners is required to be relegated back to the Scrutiny Committees after following the procedure in respect of the Vigilance Cells.
(vi) That the observations of the Division Bench in its order dated 15- 3-2018 passed in Writ Petition 144 of 2018 also lends support to the contention of the Petitioners that the absence of the endorsement of the Deputy Superintendent of Police impinges upon the validity of the report. 8 Submissions of the Learned Counsel Mr. Surel Shah appearing for the Petitioner in Writ Petition No.2269 of 2017 The Learned Counsel adopted the arguments of the Learned Senior Counsel Mr. Y. S. Jahagirdar but in addition submitted that in terms of Rule 12 what is contemplated is the Vigilance Cell and not an individual member of the Vigilance Cell and therefore the report has to be submitted by the Vigilance Cell as a body and not under the signature of a Police Inspector. 9 Submissions of the Learned Senior Counsel Mr. A. V. Anturkar appearing for the Respondent No.5 in Writ Petition No.145 of 2018 mmj 15 of 35 wp-145-18&ors
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The other Petitioners in the other Petitions have also stood by the Vigilance Cell Reports in their respective cases either in their replies to the show cause notices issued by the Scrutiny Committees, or in their written arguments / submissions filed before the concerned Scrutiny Committees. 19 Hence the Petitioner in Writ Petition No.145 of 2018 and the other Petitioners in other Petitions accepted the said reports and in fact it was their case that the said reports should be accepted by the Caste Scrutiny Committees. The Petitioners never questioned the said reports of the Vigilance Cells before the Caste Scrutiny Committees and in fact participated in the hearing before the Caste Scrutiny Committees without demur and it is only when the Caste Scrutiny Committees passed the impugned orders that the reports are sought to be challenged on the ground that the reports are suffering from an infirmity as they have not been signed or endorsed by the Deputy Superintendents of Police, Vigilance Cells. In our view the reliance placed by the Learned Senior Counsel Mr. Anturkar for the Respondent No.5 on the Division Bench Judgments of this Court in Surayya Shaheen Gous Mohiuddin (supra), Ajaykumar Y. Nikhar Vs. State of Maharashtra & Ors., is apposite. In Ajay Kumar Nikhar's case (supra) it has been held by the Division Bench of this Court that the objection to the constitution of the committee has to be taken at the earliest opportunity and if not taken then the doctrine of defacto would be attracted. It is held in Surayya's case by another Division mmj 32 of 35 wp-145-18&ors Bench of this Court that it is not necessary for all members of the Vigilance Cell to visit the claimants / Petitioners and to make inquiry in respect of the social status claim of the Petitioner. A reference could also be made to the Judgment of the Division Bench in Avinash T. Limje's case (Supra) wherein the Division Bench held that unless prejudice is shown to be caused to the Petitioners by the Vigilance Cell not having a Deputy Superintendent of Police the report of the Vigilance Cell cannot be said to be vitiated. In our view therefore the Petitioners by their conduct have acquiesced in the reports of the Vigilance Cells and are now estopped from challenging the same on the ground of the Deputy Superintendents of Police not having endorsed the reports.
20 We have noticed hereinabove that there is no statutory requirement for the reports of the Vigilance Cells to be endorsed by the Deputy Superintendents of Police. Even in respect of the violation of a mandatory provision, it is trite that the person alleging violation has to show the prejudice that has been caused to him. In the said context a useful reference could be made to the Judgment of the Apex Court in Aligarh Muslim University's case (supra) wherein the Apex Court has held that where no prejudice is caused to the person concerned the interference under Article 226 is not necessary. It is held in State Bank of Patiala & Ors that even a mandatory requirement can be waived by the person concerned if such requirement is in his interest and not in public interest. In the instant cases as indicated above there is no statutory mmj 33 of 35 wp-145-18&ors requirement that the reports of the Vigilance Cells are required to be endorsed by the Deputy Superintendents of Police. The Petitioners are calling in question the said reports after accepting the said reports and in fact in their replies to the show cause notices issued by the Caste Scrutiny Committees or written submissions defended the said reports and prayed that the Caste Scrutiny Committees accept the said reports. It is only after the Caste Scrutiny Committees rejected their caste claims that the Petitioners have now found it fit to challenge the Vigilance Cell Reports on the ground that the same have not been endorsed by the Deputy Superintendents of Police. Hence the Petitioners by their conduct have themselves shown that no prejudice was caused to them by the said reports and also they have by their conduct acquiesced in the said reports by participating in the proceedings before the Caste Scrutiny Committees without taking any objection to the said reports. 21 We are unable to accept the contention of the Learned Senior Counsel for the Petitioners that the Deputy Superintendents of Police are required to endorse the reports and as such a practice was being followed by the Vigilance Cells. In our view merely because in some cases in the past the Deputy Superintendents of Police have endorsed on the reports of the Vigilance Cells, the said practice cannot assume the status of a requirement which is required to be followed. The practice even if followed by the Vigilance Cell in some cases cannot be elevated to the status of a statutory mmj 34 of 35 wp-145-18&ors requirement, violation of which would vitiate the report of the Vigilance Cell, when statutorily there is no such requirement.