1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5377 OF 2004
Ajaykumar Yadaorao Nikhar,
aged about 38 years,
occupation - Social Service,
r/o Ram Mandir Ward,
Bhandara, Tah. & Dist. Bhandara. ... PETITIONER
Versus
1. State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai 400 032.
2. Scheduled Tribe Caste Certificate
Scrutiny Committee, Adiwasi Vikas
Bhawan, Giripeth, Nagpur.
3. The Collector, Bhandara.
4. Smt. Leena Kowe,
aged about Adult, occupation -
Not known, r/o Jai Gondwana
Mahila Bahuuddeshiya Vikas
Mandal, Baliramji Maikam's
House, Baba Mastanshah Ward,
Bhandara.
5. Smt. Anita Tekam,
aged about - Adult, occupation -
Not known, r/o Ward No. 4-A,
Municipal Council, Bhandara.
::: Downloaded on - 09/06/2013 17:54:47 :::
2
6. Bharat Tulosiram Kumbhare,
aged about 39 years, r/o
Ram Mandir Ward, Bhandara,
Taluka & District - Bhandara. ... RESPONDENTS
Shri S.R. Narnaware, Advocate for the petitioner.
Shri D.M. Kale, AGP for respondents No. 1 & 3.
Shri P.B. Patil, Advocate for respondent No. 2.
Shri C.S. Kaptan, Advocate for respondent No. 6.
.....
CORAM : B.P. DHARMADHIKARI
& A. P. BHANGALE, JJ.
DATE OF RESERVING JUDGMENT : OCTOBER 10, 2011.
DATE OF PROUNCING JUDGMENT : NOVEMBER 11, 2011.
JUDGMENT : (Per B.P. DHARMADHIKARI, J.)
1. Order dated 16/10/2004 passed by Caste Scrutiny
Committee invalidating caste claim of petitioner as belonging to
Halba scheduled tribe forms subject matter of challenge in this
matter. Impugned order is under Maharashtra Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis) Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate
::: Downloaded on – 09/06/2013 17:54:47 :::
3
Act,2000–referred to as Act no.23 of 2001 hereafter. Petitioner
has sought that caste certificate on 9/3/1983 & contested
election as councilor of Municipal Council, Bhandara on
22/1/2002 against a reserved seat. Because of this invalidation,
Collector had declared him disqualified on 6/11/2004 and it was
recalled on 22/11/2004 as this Court on 11/11/2004 stayed the
order of Scrutiny Committee. Thereafter, during pendency of
this petition & because of orders dated 29/11/2004 in it, he has
been elected again in January,2007 as scheduled tribe candidate
on the strength of same caste certificate & current tenure is due
to expire on 2012.
2 In this background, we have heard Adv. Narnaware
for petitioner, Adv. Patil for respondent 2 Scrutiny Committee,
Adv. Kaptan for respondent 6 & Shri Kale, learned AGP for
respondents No. 1 & 3
3 Advocate Narnaware has basically raised 4 issues.
::: Downloaded on – 09/06/2013 17:54:47 :::
4
The constitution of Committee according to him is not legal as it
is in breach of mandatory directions issued by the Hon. Apex
Court in case of Madhuri Patil v. Addl. Commissioner, Tribal
Development,-AIR 1995 SC 94 as modified in 1997 at AIR 1997
SC 2581- “Madhuri Patil v. Addl. Commissioner, Tribal
Development, Thane“. Strong support is being taken from
direction 4 in 1995 verdict & para 5 of later. Second contention
is about no association of Research Officer with vigilance cell
and his not accompanying the police officer for spot inquiry &
verification. Third ground raised is about not applying affinity
test legally & ignoring material provided by petitioner on
28/7/2003. Lastly, it is urged that allegations of malafides
leveled are not denied by filing an affidavit of competent officer
and plea about perversity of findings is not traversed.
4 In order to substantiate the first contention, Shri
Narnaware, learned counsel relied upon assertions in para 16 of
writ petition to point out Constitution of Scrutiny Committee
which has adjudicated the caste claim of the petitioner. The
::: Downloaded on – 09/06/2013 17:54:47 :::
5
reliance is being placed on direction No. 4 of the Hon’ble Apex
Court in the case of Madhuri Patil vs. Additional Commissioner,
Tribal Development, (supra), and view expressed in the case of
GM, Indian Bank vs. R. Rani & Anr., reported at (2007) 12 SCC
796. He states that the Additional Secretary or Joint Secretary is
not the Chairman of said Committee and Director of Tribal
Development was also not associated with it. He also invites
attention to the judgment in the case of Director of Tribal
Welfare, Government of A.P. vs. Laveti Giri, reported at (1995) 4
SCC 32 and Baswant vs. State of Maharashtra, reported at (2007)
14 SCC 800, to urge that said direction in Madhuri Patil-(supra)
is binding and mandatory. To demonstrate that there was no
Research Officer involved in Vigilance investigation, he points
out that Police Inspector has made enquiry as part of Vigilance
Cell on 28.07.2003 and Research Officer has countersigned it on
29.07.2003. The attention is also invited to reply given by the
petitioner to vigilance report to show that Research Officer had
not accompanied said Police Inspector for field enquiries. The
case of Madhuri Patil vs. Additional Commissioner, Tribal
::: Downloaded on – 09/06/2013 17:54:47 :::
6
Development, Thane, (supra), particularly para 5 therein is cited
to buttress this contention. The learned counsel states that
because of these lacunae, two documents relied upon by the
petitioner which supported his case have not been looked into by
the Vigilance Cell and the Committee. The first document
according to him is caste certificate of his father issued on
05.10.1977 while the later document is dated 05.01.1927 and of
cousin grand father. The attention is being drawn to para 5 of
writ petition.
5 Affinity test has also not been rightly applied and
material supplied on behalf of the petitioner to vigilance
authorities on 28.07.2003 has not been properly evaluated. The
only consideration is the remark of Research Officer dated
29.07.2003 where he records that traits do not match. Para 12
of writ petition and judgment of the Hon’ble Apex Court in the
case of Gayatrilaxmi B. Nagpure vs. State of Maharashtra,
reported at AIR 1996 SC 1338 are relied upon. It is further
contended that the allegations of malafides are not rebutted and
::: Downloaded on – 09/06/2013 17:54:47 :::
7
even the contention in writ petition that finding recorded by the
Scrutiny Committee are perverse, has not been denied.
According to him, the approach of Scrutiny Committee in the
matter has been too casual. The judgment in the case of(wrong
citation ?) reported at 2009 ALL MR (SC Reporter) 193, para
115 is stated to be relied upon for said purpose.
6
In reply, Shri Patil, learned counsel for respondent
No. 2 – Committee has invited attention to Government
Resolution dated 14.07.1997 to urge that constitution of
Committee is in accordance with the observations of the Hon’ble
Apex Court in Madhuri Patil’s case (supra) and Committee is
valid. He further states that here the impugned order is passed
on 16.04.2004 and Act No. 23 of 2001 has come into force on
28.10.2001. The Notification constituting Scrutiny Committee
under Section 6 of said Act is dated 04.06.2003 and it has been
slightly modified on 12.07.2006. The reliance upon 1999
Government Resolution in this respect by the petitioner is
misconceived and there is no challenge to these later
::: Downloaded on – 09/06/2013 17:54:47 :::
8
notifications. Affidavit dated 03.10.2011 filed by Respondent
No. 2 – Committee is pressed into service to urge that
Constitution of Committee is as per judgment of the Hon’ble
Apex Court in the case of Madhuri Patil’s case. The learned
counsel has further stated that the petitioner never challenged
constitution of Committee and submitted to its jurisdiction and,
therefore, doctrine of de facto has to apply. The unreported
judgment of Division Bench of this Court at Aurangabad
delivered on 12.08.2011 in Writ Petition 107 of 2010 is relied
upon for this purpose. He has also relied upon AIR 2005 S.C.
3446 “State Bank’s Staff Union (Madras Circle) v. Union of
India” to show how validity of an Enactment subsequent to
court verdict needs to be examined.
7 The first judgment in the case of Madhuri Patil vs.
Additional Commissioner, Tribal Development, Thane, (supra) is
relied upon along with later Madhuri Patil vs. Additional
Commissioner, Tribal Development, (supra) to urge that as
required by said judgments of the Hon’ble Apex Court, Research
::: Downloaded on – 09/06/2013 17:54:48 :::
9
Officer has participated in vigilance enquiry. Reply filed,
particularly para 14 onwards are relied upon for this purpose.
The judgment in the case of Prajakta vs. State of Maharashtra,
2007 (2) Mh. L.J. 760 (paras 14/ 19) are read out to contend
that Research Officer need not go with Vigilance Cell Officer for
field enquiry. The observations in para 14 in this judgment are
relied upon to urge that directions issued by the Hon’ble Apex
Court are only “workable principles”. Rule 10 of Rules framed
under Act No. 23 of 2001 along with Rule 12(2) is also relied
upon for this purpose. Judgment in the case of Bharat vs. State
of Maharashtra, reported at 2010 (4) Mh. L.J. 458, para 18 is
relied on for same purpose along with above referred unreported
judgment in Writ Petition No. 107 of 2010 at Aurangabad ( para
21). The judgment in Sangeeta Balayya Bhurewar vs. State of
Maharashtra, reported at 2003(5) Mh. L.J. 645 is pressed into
service to show that constitution of committee need not be
strictly as per directions in the judgment of the Hon’ble Apex
Court.
::: Downloaded on – 09/06/2013 17:54:48 :::
10
8 About old document of 1914, the learned counsel
states that person named therein viz. Ganpat Desaru does not
figure in family tree disclosed by the petitioner and it was also
not made available to Vigilance Cell authorities or Committee.
The learned counsel states that that document is misleading and
has been produced before this Court with malafide intention.
According to him, as demonstrated in reply affidavit in paras 11
& 12, principles of affinity have been correctly applied. The
judgments in the case of Ramatai Madhukarrao Tapre vs. State of
Maharashtra & Ors., reported at 2002 (Supp. 2) Bom. C.R. 268,
(para 10) by learned Single Judge of this Court and of Hon. Apex
Court in L. Ushadevi vs. Union of India, reported at 2007(14) SCC
491 are pressed into service to urge that Act No. 23 of 2001 is
complete code. The judgment in the case of Vijaya Deorao
Nandanwar vs. State of Maharashtra, reported 2010 (6) Mh. L.J.
445 is relied upon to urge that only when constitution of
committee is contrary to law or then “working principles” in
Madhuri Patil-(supra), interference is warranted and not
otherwise. The material on record is pressed into service to
::: Downloaded on – 09/06/2013 17:54:48 :::
11
show that appropriate opportunity has been given to petitioner
and principles of natural justice have been followed. There is no
procedural illegality or jurisdictional error. There is no prayer in
writ petition to set aside notification constituting Scrutiny
Committee and by producing wrong documents, effort has been
made to mislead this Court. Wrong statements have been made
in writ petition and on its basis, the petitioner has completed
first five years of elected tenure. The scope of judicial review
being limited, petition should be dismissed but then serious
cognizance of malafides on the part of the petitioner should be
taken.
9 Shri Kaptan, learned counsel for respondent No. 6
has relied upon reply affidavit filed by the Scrutiny Committee to
show that the Commissioner appointed as Chairman of said
Committee is of level of Joint Secretary and hence composition
of that Committee is proper. In Writ Petition, challenge is to non
existent resolution or notification & in absence of proper prayer,
it must fail. He contends that direction No. 4 in the judgment in
::: Downloaded on – 09/06/2013 17:54:48 :::
12
the case of Madhuri Patil (supra) is fully complied with here.
The judgment of Division Bench of this Court in the case of Rohit
Rathod (supra) is pending in Special Leave Petition before the
Hon’ble Apex Court and has been stayed. The judgment in the
case of Sudhakar Vithal Kumbhare vs. State of Maharashtra,
reported at 2004 (9) SCC 481, is sought to be distinguished by
pointing out that there caste claim was held invalid without
referring the matter to Caste Scrutiny Committee and thus
Article 141 was violated. Here, the invalidation is after due
opportunity to petitioner & in full compliance with law on the
point. In the alternative and without prejudice, he states that 3
members out of total 5 members constitute quorum and as in
present proceedings, quorum always existed, all meetings and
adjudication by the Scrutiny Committee is valid. Hence, even if
the Commissioner is not held to be competent as Chairman
Member, still the proceedings therein are not vitiated. Support is
being taken from the judgment in the case of The Punjab
University, Chandigarh vs. Vijay Singh Lamba & Ors, reported at
1976 (3) SCC 344.
::: Downloaded on – 09/06/2013 17:54:48 :::
13
10 The learned counsel further states that when the
Hon’ble Apex Court considered the controversy either in 1994 or
then in 1997, there was no Enactment framed by competent
Legislature occupying the field. The judgment of the Hon’ble
Apex Court in the case of Rajeswar Prasad Misra vs. The State of
West Bengal & Anr., reported at AIR 1965 SC 1887 is relied upon
to show that the Hon’ble Apex Court or then no Court enacts a
law. To point out that even adjudication by the Court of Law can
be nullified by Legislature by enacting a competent law, he relies
Saksena vs. State of
upon the judgment in the case of I.N.
Madhya Pradesh, reported at AIR 1976 SC 2250 (1). He
contends that though direction No. 4 in the case of Madhuri Patil
(supra) is not completely diluted by Act No. 23 of 2001, the
Notification issued under Section 6 of said Act is consistent and
in consonance with direction No. 4. Lastly, Division Bench
judgment in the case of Deorao G. Umredkar vs. State of
Maharashtra, reported at 2007 (5) BCR 629 (para 30) is relied
upon to show that role of Research Officer starts after vigilance
investigation and hence he is not supposed to visit the spot
::: Downloaded on – 09/06/2013 17:54:48 :::
14
during field enquiry.
11 Shri Narnaware, learned counsel, in reply argument
has contended that there is no answer by any of the respondents
as to why officer higher in rank than Director could not be
appointed as the Chairman. He repeats that directions No. 4 in
first and 5 in later Madhuri Patil case are mandatory and the
same are never modified nor diluted. The judgments in the case
of AIR 1997 S.C. 2046 “Director of Tribal Welfare v. Laveti Giri“D/-
10 -3 -1997 & GM, Indian Bank vs. R. Rani & Anr . , (supra) are
relied upon to contend that the State Legislature had not
obtained any permission from the Hon’ble Apex Court before
enacting Act No. 23 of 2001. The Government Resolution dated
14.07.1997 after second judgment in the case of Madhuri Patil,
law stated in the case of Rohit Rathod vs. State of Maharashtra,
reported at 2010 (2) Mah. L.J. 384, and judgment of the Hon’ble
Apex Court in the case of Sudhakar Vithal Kumbhare vs. State of
Maharashtra & Ors., reported at (2004) 9 SCC 481 are pressed
into service for this purpose. The judgment in the case of
::: Downloaded on – 09/06/2013 17:54:48 :::
15
“Central Inland Water Transport Corporation Ltd. v. Brojo Nath
Ganguly” reported at AIR 1986 SC 1571 is pressed into service to
urge that Section 6 confers upon the State Government a wide
and un-canalized power. Therefore, challenge to notification
issued thereunder is not necessary. The judgment in the case of
Vijay Kisan Karanjkar vs. State of Maharashtra, reported at 2004
(3) Mh. L.J. 49 and unreported judgments in Writ Petition No.
8413 of 2008 (paras 6 & 7), Writ Petition No. 2136 of 2011
(paras 6 & 8) are relied upon for this purpose. State of Haryana
vs. State of Haryana, reported at (1993) 3 SCC 114 (paras 10 &
12) is pressed into service to show how principles of law need to
be applied & consistent approach is of paramount importance.
12 Unreported judgment in Writ Petition No. 107 of 2010
(para 21) and judgment in the case of Ashwini Anil Chavan vs.
State of Maharashtra, reported at 2006 (4) Mh. L.J. 415 (para 3)
are cited to point out how the Research Officer is expected to
accompany vigilance cell authorities. The judgment delivered at
Nagpur in the case of Bharat vs. State of Maharashtra, reported
::: Downloaded on – 09/06/2013 17:54:48 :::
16
at 2010 (4) Mh. L.J. 458 (para 18) is relied upon for said
purpose. The Government policy on this in Circular dated
06.09.2000 , particularly clause 5, thereof is relied upon to point
out the role to be played by a Research Officer in field enquiry.
Learned Counsel has further urged that here, the affidavit of
Research Officer filed on 03.10.2011 is not by that Officer who
was associated with present vigilance enquiry and hence that
affidavit cannot be accepted. The judgment in the case of “C. S.
Rowjee v. State of A.P.” reported at AIR 1964 SC 962 (para 22) is
cited to show how the allegations of malafides need to be dealt
with by respondent & by Courts. The learned counsel has
concluded his reply by contending that non-inclusion of
Additional or Joint Secretary from Committee is in fact Contempt
of Court.
13 It will be appropriate to first deal with the issue of
composition of Scrutiny Committee. The challenge is based
upon directions of the Hon’ble Apex Court in the case of Madhuri
Patil vs. Additional Commissioner, Tribal Development, (supra),
::: Downloaded on – 09/06/2013 17:54:48 :::
17
and its later judgment also in the case of Madhuri Patil vs.
Additional Commissioner, Tribal Development, Thane, reported at
AIR 1997 SC 2581 (supra). Direction No. 4 as contained in para
12 in first judgment requires State Governments to constitute a
Committee of three officers and first one amongst them is
Additional or Joint Secretary or any officer higher in rank of the
Director of concerned departments. The second one is Director,
Social Welfare, Tribal Welfare, Backward class welfare etc.
Therefore, first member has to be of a rank above Director. In
later judgment, the Hon’ble Apex Court has not touched this
direction and it is retained as it is. The later judgment is on
application moved by State Government for some modifications
in earlier directions. On 14.07.1997 mentioning both these
judgments, State Government has issued a resolution and for
Nagpur Area, officer of the rank of the Additional Secretary or
Joint Secretary/ Director, Tribal Development and Research
Institute, Pune, is nominated as Member. The Assistant Director,
Tribal Development, Pune and Assistant Director, Tribal
Development, Amravati are its two members. The Deputy
::: Downloaded on – 09/06/2013 17:54:48 :::
18
Director (Research) is its Member Secretary. Two Research
Officers are also its members. After coming into force of Act No.
23 of 2001 vide Notification dated 04.06.2003, the Committee
has been constituted in exercise of powers under S.6 thereof and
this notification does not refer to earlier resolution mentioned
above, issued in pursuance of directions of the Hon’ble Apex
Court. This resolution with its modification is already mentioned
by us above. The officer of the rank of Additional Secretary or
Joint Secretary expressly does not figure in it. The Chairman of
the Committee is Commissioner/ Director for Tribal Research
and Training Institute, Pune. The resolution has undergone
slight change on 12.07.2006. The petitioner has not challenged
any of these resolutions or notifications.
14 Shri Kaptan, learned counsel, had therefore,
contended that in the absence of challenge to any particular
notification issued under Section 6, the arguments of the
petitioner are only of academic importance. However, in the
case of Vijay Kisan Karanjkar vs. State of Maharashtra, (supra),
::: Downloaded on – 09/06/2013 17:54:48 :::
19
Division Bench of this Court has considered the judgment of the
Hon’ble Apex Court in the case of Madhuri Patil-(supra) and in
para 15 observed that it was not open to State Government to
contend that the constitution of committee as directed by the
Hon’ble Apex Court was not compulsory. This judgment of
Division Bench of this Court is delivered on 27.06.2003 i.e. after
notification dated 04.06.2003. However, it does not appear that
this notification dated 04.06.2003 was being considered there, as
challenge was to adjudication by the Scrutiny Committee dated
12.05.2003. Thus, that Committee was not constituted under
Act No. 23 of 2011. This Court also found that Government
itself had prescribed quorum of two members and hearing was
also accorded only by two members but the order was passed by
three members and signed by the committee consisting of three
members. The Government had then contend that third member
was necessary only in case of verification of caste claims of
Scheduled Castes or Scheduled Tribes candidate. This Court did
not accept that stand. The Division Bench in the process has
noted contention that Act No. 23 of 2001 did not provide
::: Downloaded on – 09/06/2013 17:54:48 :::
20
minimum number of members on committee and the petitioner
had not challenged the resolution which prescribed quorum or
constitution of committee. The Division Bench has, however,
nowhere specifically stated that it was not necessary for the
petitioner to challenge said resolution. However, in view of this
judgment, we have proceeded further to consider the challenge
even on merits. We are required to look at it again in the course
of discussion.
15 The Scrutiny Committee has filed an affidavit of reply
on 03.10.2011 during hearing and in it, it is stated that the
Commissioner/ Director of Tribal Research and Training, Pune, is
Chairman of the Committee. The said officer is I.A.S. and of the
rank of Joint Secretary. Similarly, the Additional Commissioner
was the person of the rank of the Director of Tribal Welfare. It is
also pointed out that status of the Commissioner/ Director for
Tribal Research and Training, Pune and of Additional
Commissioner has nowhere been questioned in the petition.
These assertions on oath have not been traversed by the
::: Downloaded on – 09/06/2013 17:54:48 :::
21
petitioner thereafter though hearing continued till 10th October
2011. In GM, Indian Bank vs. R. Rani & Anr. (supra), the
Hon’ble Apex Court has found that directions in Madhuri Patil
judgment would have binding force of law. The observations are
made while considering the challenge to judgment of the Madras
High Court where it appears that there was no Enactment like
Act No. 23 of 2001. In this judgment, the Hon’ble Apex Court
has pointed out that its directions have binding force of law after
noticing earlier precedents. Consideration in para 7 shows that
reiteration of principles laid down in Madhuri Patil (supra) in
subsequent judgment in the case of Director of Tribal Welfare,
Government of Andhra Pradesh vs. Laveti Giri, (supra), requiring
Government of India to examine the issue in greater details and
to bring up uniform legislation are taken note. Thereafter
judgment of the Hon’ble Apex Court itself in the case of Baswant
vs. State of Maharashtra & Ors., (supra), arising out of State of
Maharashtra is also noted and the Hon’ble Apex Court has found
that Constitution of Committee there, was not in accordance
with decision rendered by it in Madhuri Patil-(supra). The
::: Downloaded on – 09/06/2013 17:54:48 :::
22
judgment of larger Bench of the Hon’ble Apex Court in the case
of Sudhakar Vithal Kumbhare vs. State of Maharashtra, reported
at (2004) 9 SCC 481, is then looked into with mention that there
caste claim was invalidated without referring the matter to
appropriate committee. The Hon’ble Apex Court, therefore,
noted that the directions given in Madhuri Patil (supra) cannot
be viewed simply as guidelines and said law reiterated on
number of occasions was found approved even by three judge
bench of the Hon’ble Apex Court. It is to be noted that Baswant
vs. State of Maharashtra & Ors., (supra), is the matter which
arises out of SLP(C) filed in the year 1998 and hence it is prior to
coming into force of Act No. 23 of 2001. The other judgment in
the case of Sudhakar Vithal Kumbhare vs. State of Maharashtra,
(supra) which goes to the Hon’ble Apex Court from State of
Maharashtra only, also shows that there claim was not referred
to Scrutiny Committee at all. The later judgment of the Hon’ble
Apex Court in Director of Tribal Welfare vs. Laveti Giri, (supra)
finds mention in para 8 of this judgment. The Hon’ble Apex
Court in this later judgment has approved draft rules submitted
::: Downloaded on – 09/06/2013 17:54:48 :::
23
to it by State of Andhra Pradesh. The draft rules were prepared
in pursuance of a State Act already in force in that State prior to
Madhuri Patil-(supra). We have to make reference to this 1997
judgment in Laveti Giri , little later. The Hon’ble Apex Court
approved those draft rules and constitution of the State Level
Committee and District Level Committees thereunder. In said
para 8, the Hon’ble Apex Court has pointed out that directions
issued in Madhuri Patil-(supra), have not been modified. All this
holds good where the field of caste claim verification is not
occupied by a competent legislation.
16 In the case of Sangeeta Balayya Bhurewar vs. State of
Maharashtra, reported at 2003 (5) Mh. L.J. 645, Division Bench
of this Court has considered the law on the point and has
observed at the end of para 16 that the learned Single Judge
who found non compliance with paragraph No. 5 in the case of
Madhuri Patil-(supra) not sufficient to vitiate the findings
recorded by Committee, correct. In the said judgment, learned
Judge follows view of another learned Single Judge in the case
::: Downloaded on – 09/06/2013 17:54:48 :::
24
of Kum. Chhaya Namdeorao Binekar vs. State of Maharashtra,
reported at 2003(3) Mh.L.J. 339. In the said judgment in para
26, the learned Single Judge has held that manner of
investigation need not be strictly in accordance with the words of
the Hon’ble Supreme Court. In the case of Vijaya Deorao
Nandanwar vs. State of Maharashtra, reported at 2010 (6)
Mh.L.J. 445, Division Bench of this Court has considered the
question of Constitution of Scrutiny Committee and found that
when Constitution of Scrutiny Committee is on the basis of first
judgment of the Hon’ble Apex Court in Madhuri Patil,
qualification and experience of personnel in the rank and cadre
as on date of said judgment have to be construed as adequate as
saved by necessary implication. In para 28, said Division Bench
has observed that it is open to State Government to legislate as
regards qualifications of members of Scrutiny Committee in
conformity with Madhuri Patil’s case. The Division Bench also
noted that said process was going on. If the Committee is found
constituted in accordance with law, Division Bench found that it
was not open to anybody to challenge its constitution on the
::: Downloaded on – 09/06/2013 17:54:48 :::
25
ground of lack of qualification so long as its constitution
conforms to the dictum in the Madhuri Patil’s case.
17 This brings us to consideration of Division Bench
judgment in the case of Rohit Rathod vs. State of Maharashtra,
reported at 2010 (2) Mh. L.J. 384. There the order of Scrutiny
Committee dated 30.04.2009 invalidating his caste claim as
belonging to Vimukta Jati was assailed. The Scrutiny Committee
as constituted under Act No. 23 of 2001 as per Notification dated
12.02.2009 had considered that issue of invalidity. The said
Committee consisted of Additional Collector, Nagpur, who acted
as Chairman, Research Officer and Member Secretary and
Member of Divisional Social Welfare Officer. The invalidation
was questioned on the ground that constitution of Committee
was not in accordance with the judgment of the Hon’ble Apex
Court in the case of Madhuri Patil (supra). The Division Bench
has noticed that constitution of committee which adjudicated
caste claim was not as per notification dated 12.2.2009 issued
under S. 6 of Act no. 23 of 2001. As per this 12.2.2009
::: Downloaded on – 09/06/2013 17:54:48 :::
26
notification, the Committee for Social Welfare, Cultural Affairs
and Sports Department, was to comprise of Additional
Commissioner (Revenue) as Chairman, Divisional Social Welfare
Officer as Member and Research Officer as Welfare Officer
Member. The Research Officer was to function as Member
Secretary. The learned Assistant Government Pleader had tried
to justify the Constitution of Committee by placing reliance upon
Section 6(1) of Act No. 23 of 2001. He contended that
enactment did not require Government to constitute a
Committee of Officers of particular status or rank. Rule 9 of
2003 Rules framed under the Act no. 23 of 2001 were also
pressed into service to support the contention that Additional
Commissioner (Revenue) was not required as a Chairman. The
Division Bench of this Court has found that neither said Section
6 nor Rule 9 stipulated who should be appointed on Committee.
In para 9 of the judgment, it has been mentioned that said
provisions confer un-canalized discretionary powers on State
Government and it would, therefore, be unconstitutional. Said
Division Bench has drawn support for this from the judgment of
::: Downloaded on – 09/06/2013 17:54:48 :::
27
the Hon’ble Apex Court in the case of Central Inland Water
Transport Corporation Limited & Anr. vs. Brajo Nath Ganguly &
Anr., reported at AIR 1986 SC 1571. But as there was no prayer
for declaring said Enactment (23 of 2001) unconstitutional,
Division Bench has left that issue open. Because of Division
Bench judgment in the case of Vijay Kisan vs. State of
Maharashtra, (supra), it found that Direction No. 4 is clearly
mandatory and the Additional Collector could not have
functioned as Chairman. It, therefore, has set aside that
adjudication of caste claim and directed fresh consideration by a
duly constituted Scrutiny Committee. The respective counsel
have also pointed out to us that this judgment is stayed by the
Hon’ble Apex Court presently. We also note that earlier view of
Division Bench of this Court in Dattatraya Rambhau Thorat vs.
State of Maharashtra -2002(4) All.M.R. 807 negating challenge
to constitutional validity of Act no. 23 of 2001 has observed:-
“40. Under section 6 of the Act provision has been
made for constituting, by notification in the official gazette,
::: Downloaded on – 09/06/2013 17:54:48 :::
28
one or more scrutiny committee(s) for verification of caste
certificates and it is further provided that the said committee
shall follow such procedure for verification of the caste
certificate and adhere to the time limit for verification and
grant of validity certificate, as prescribed. The composition of
the committee viz. the number of members etc., has not been
spelt out and, therefore, the natural presumption that is
required to be drawn is that the composition of the
committee shall be as per the directives laid down by the
Apex Court in Kumari Madhuri Patil’s case (supra). The
provisions of section 6 of the Act are clear on the composition
of the committee and the contentions that they are contrary
to the directives issued by the Supreme Court are without any
substance.” This judgment is looked into by Full Bench of
this Court in Sujit V. Patil vs. State Of Maharashtra–(2004)3
Mah. L.J. 1109. Hon. Apex Court has while considering
overriding effect of Act no. 23 of 2001 on government
resolution dated 15.6.1995 in case of State of Maharashtra
vs. Sanjay Nimje, noted that a different Scrutiny Committee
constituted under S. 6 of said Act has started functioning in
Maharashtra when it observes:– “11. The Caste Scrutiny
Committee was initially constituted in terms of the decision
of this Court in Kumari Madhuri Patil & Anr. Vs. Additional
Commissioner, Tribal Development & Ors. 1994 (6) SCC
241). The Committee which was now constituted in terms of
::: Downloaded on – 09/06/2013 17:54:48 :::
29
the 2000 Act issued a notice upon the respondent. He was
given an opportunity of hearing. The principles of natural
justice had, thus, been complied with. The Caste Scrutiny
Committee opined that the respondent failed to prove — …
—.” This shows that this Court in Rohit Rathod vs. State of
Maharashtra(supra) was not required to & has not laid
down any law on the aspect raised before us.
18 The judgment of Division Bench of this Court in the
case of Vijay Kisan vs. State of Maharashtra, (supra) reveals that
there the order of Scrutiny Committee was dated 12.05.2003
and the Committee consisted of three members but then hearing
was afforded by two members only and the impugned order was
signed by three members. The petitioner, therefore, had
contended that such order was unsustainable. The learned AGP
supported that order and pointed out that on two days when
hearing took place, it was before two members of Scrutiny
Committee while the impugned order was issued by all three
members. The stand was, the proceedings could not have been
held as vitiated because of Government Resolution dated
::: Downloaded on – 09/06/2013 17:54:48 :::
30
25.01.2000. The said Government Resolution dealt with quorum
and prescribed that at each hearing, there should be quorum of
two members but then the validity certificate should be issued
under the signatures of all three members and needed seal of
office of the Committee. This controversy is examined and in
para 15, the Division Bench has found that State Government
could not have contended that it was not obliged to constitute a
Committee as per judgment of the Hon’ble Apex Court in the
case of Madhuri Patil-(supra). It also noted that validity of
Government Resolution prescribing quorum of two members was
not assailed before it and hearing extended by two members,
therefore, could not have been objected to. In para 18, the
contention that in facts of the matter, participation by third
member was not necessary as caste claim was of OBC candidate,
has been taken note of. The conclusion reached in para 19
shows that there were no separate and independent committees
and hence this contention was held only academic. It is held
that the Hon’ble Apex Court had directed constitution of
Committee of three members and that direction needed to be
::: Downloaded on – 09/06/2013 17:54:48 :::
31
complied with. All three members, therefore, ought to have
accorded hearing to the petitioner. Because of this reason,
challenge to Government Resolution prescribing quorum was
found immaterial and the impugned order was set aside. It is,
therefore, obvious that the issue of Constitution of Committee
under Act No. 23 of 2001 or then statutory rules dealing with
quorum during such proceedings of Scrutiny Committee did not
fall for consideration before the said Division Bench.
19 Thus Rohit Rathod vs. State of Maharashtra,(supra)
does not hold that S. 6 of the Act no. 23 of 2001 is bad or the
committee constituted thereunder is illegal. It only finds
functioning of Additional Collector as chairman contrary to
notification dated 12.2.2009 issued by State Government by
using its powers under said S. 6. Before us, the issue is of conflict
between the statutory notification and committee as envisaged
by Hon. Apex Court in absence of any statute. The need to have
uniform law on the subject is already noted by Hon. Apex Court.
At this stage, we only wish to indicate that the nature of
::: Downloaded on – 09/06/2013 17:54:48 :::
32
directions issued as “workable principles” or “guidelines” and
two judgments of Hon. Apex Court with reference to State
Enactments were not pointed out to this Court in Rohit Rathod
vs. State of Maharashtra,(supra). As the contention was not
specifically raised there, the relevant arguments having bearing
on the matter were also not advanced. We will like to revert back
to this aspect little later when we consider judgments of Hon.
Apex Court in matter Laveti Giri (1997) & L. Ushadevi vs. Union
of India, (supra).
20 This brings us to consideration of the other argument
about not applying affinity test properly or then non
consideration of two documents submitted by the petitioner. The
service of vigilance cell report upon the petitioner is not in
dispute. The petitioner has also replied to said reports. The
pleadings before us show contention that said enquiry cannot be
said to be proper enquiry as it did not go into requisite details
and no person related to the petitioner was examined. The
recording of statement of the petitioner is not sufficient and his
::: Downloaded on – 09/06/2013 17:54:48 :::
33
father and uncle were not examined. The Research Officer was
not associated as required by paragraph No. 5 in later judgment
in the matter of Madhuri Patil-(supra). The documents and reply
submitted by the petitioner have not been properly considered.
21 The first document is issued by the Executive
Magistrate, Bhandara on 05.10.1977 to the father of the
petitioner, showing that he belongs to Halba community which is
recognized as Scheduled Tribe. It also mentions that father and
his family ordinarily resided in Bhandara district. The reply of
the petitioner to Police Vigilance Cell is dated 28.05.2004 and
this reply does not make any reference to said document. It is
also important to note that the order of Scrutiny Committee
nowhere mentions this document & it states on oath about its
non-supply on record. In para 3 of writ petition, after
mentioning the fact of his election, the petitioner has stated that
he has placed on record caste certificate of his father dated
05.10.1977. There is thus no specific averment that this
document was supplied to Scrutiny Committee. The documents
::: Downloaded on – 09/06/2013 17:54:48 :::
34
supplied to Scrutiny Committee show photostat copy of birth
certificate of a male child born to Yadavrao Somaji (father of the
petitioner) on 26.02.1961, photostat copy of caste certificate of
the petitioner’s brother issued by the Executive Magistrate,
Bhandara, on 16.07.1974 and also birth certificate of male child
born to grand father Soma Jagat on 22.11.1937. The other four
documents are also mentioned. In this situation, it is apparent
that non consideration of this document dated 05.10.1977 by
itself is not sufficient to invalidate the consideration by the
Scrutiny Committee. Moreover, this document does not
anywhere show that the Executive Magistrate had verified any
other document or material before issuing said certificate on
05.10.1977 to Yadavrao. It appears that said document was
never supplied by petitioner. The other document not looked into
by the Scrutiny Committee is a School Leaving Certificate which
has been annexed with writ petition as Annexure 5. It is
undated and name of student mentioned therein is Ganpat
Dasru. His caste is shown as Halba with date of birth as
30.05.1914. In June 1927, said Ganpat had taken admission in
::: Downloaded on – 09/06/2013 17:54:48 :::
35
III Standard and left School on 11.04.1929 after passing IV
Standard examination. The Scrutiny Committee has in reply
affidavit stated that said document was not supplied to Scrutiny
Committee at any point of time. Though during oral arguments,
the learned counsel has stated that Ganpat Dasru is cousin grand
father, in para 5 of the petition, he has been mentioned as grand
father and pleading is “petitioner has submitted”. This plea of
submission is thus too vague as it does not clarify whether said
document is being annexed with writ petition for first time or
then was also filed before the Scrutiny committee. The family
tree is provided by the petitioner’s father himself during vigilance
enquiry and not in dispute, does not mention name of said
Ganpat Dasru as relative any where. The perusal of statement of
father of the petitioner recorded by Vigilance Cell authorities on
16.7.2003 shows that family of the petitioner shifted to
Bhandara sometimes in the year 1930. Looking to the age of
father of the petitioner and name Soma disclosed as grand
father, we find it impossible to connect this document with the
petitioner. Moreover, looking to the date of birth of said Ganpat
::: Downloaded on – 09/06/2013 17:54:48 :::
36
and passing of IV Standard by him in 1929, again it is not
possible to hold that he had son Soma who could have given
birth to Yadavrao(father of petitioner), 65 years old as on
16.7.2003. Thus this document can not be accepted as relevant
even to examine any link in the light of pleadings in para 5 of
writ petition. The learned counsel for the petitioner has relied
upon the judgment of the Hon’ble Apex Court in the case of
Gayatrilaxmi B. Nagpure vs. State of Maharashtra, reported at
AIR 1996 SC 1338, to urge that as important documents are not
looked into, the consideration by the Scrutiny Committee is
vitiated. The relevant observations noted by the Hon’ble Apex
Court there show that about 17 documents were produced by the
petitioner Gayatrilaxmi and the Hon’ble Apex Court was not
satisfied with the approach of Committee towards certificate at
Sr. Nos. 5, 7, 10, 13 & 14. In the absence of any attempt on the
part of Government to suspect the correctness or genuineness of
documents produced, the observations made in first judgment in
Kum. Madhuri Patil, in para 14 are then noted in this judgment.
The Court has to see whether Committee has considered all
::: Downloaded on – 09/06/2013 17:54:48 :::
37
relevant material placed before it and applied to its mind to
relevant facts. Here, we are not in a position to find any fault
with the application of mind by the Scrutiny Committee. The
production of these two documents before the Scrutiny
Committee or their relevance and possible impact has not been
established & sufficiently demonstrated so as to enable us to take
a view as in Gayatrilaxmi-(supra). In any case, the Scrutiny
Committee has looked into old documents and how that
consideration is or gets vitiated because of these two documents
has not been demonstrated. Thus, mere non consideration
itself, even if it is to be presumed that such documents were
produced, in present facts, is not sufficient to help the petitioner.
22 The Vigilance Cell has, in fact, while conducting field
enquiry, recorded the statement of father on the very first date
i.e. on 16.07.2003. He has stated that his father i.e. grand father
of present petitioner was illiterate. The native place (Takli) was
required to be left in 1930 because of flood. He has also given
the family tree. Yadavrao has given name of his grand father as
::: Downloaded on – 09/06/2013 17:54:48 :::
38
Jagan. When undated document showing name of Ganpat Dasru
is viewed in this background, the case of the petitioner appears
to be doubtful. In fact, Scrutiny Committee has alleged
deliberate attempt to mislead. We find substance in this
contention because in para 12 of the petition, the claim has been
made that father was not examined by vigilance cell and it is
found to be incorrect by us. The grievance about non
examination of uncle is also made but then the petitioner has not
given any reasons why he could not examine uncle as his
witness. In para 12 of the petition, he has stated that he was
appointed as workshop attendant in the year 1997 and Act No.
23 of 2001 being prospective in nature, the Scrutiny Committee
has no jurisdiction to verify caste claim. In para 21 at page 14
again, it is contended that if services of the petitioner are not
protected, he would suffer irreparable loss. In para 19, he has
mentioned that he has completed 16 years of service and the
principle to protect services in such circumstances is settled by
various judgments of the Hon’ble Supreme Court and High Court
as also by Government Resolutions dated 15.06.1995,
::: Downloaded on – 09/06/2013 17:54:48 :::
39
24.07.1998 and 04.09.2000. It thus appears that by producing a
document not connected with him and by making such irrelevant
& irresponsible allegations, the petitioner has attempted to
mislead this Court. The petitioner was aware of the remark of
the research officer and had full opportunity to prove traits &
establish affinity. Without taking these steps to discharge burden
on him, petitioner has only raised roving pleas of too technical
nature in an attempt to continue to usurp the status by
misleading this Court.
23 The judgment of the Hon’ble Apex Court in the case
of Madhuri Patil vs. Additional Director, Tribal Development,
(supra) contemplates a Committee of three officers and in case
of Scheduled Caste, another officer who has intimate knowledge
in the verification and issuance of the social status certificates, is
prescribed. In the case of Scheduled Tribes candidate like the
petitioner, the Research Officer who has intimate knowledge in
identifying the tribes i.e. Tribal communities, parts of or groups
of tribes or Tribal communities, is directed to be associated. In
::: Downloaded on – 09/06/2013 17:54:48 :::
40
later judgment in the case of Madhuri Patil vs. Additional
Commissioner, Tribal Development, Thane, (supra) in para 5, the
Hon’ble Apex Court has directed that along with Vigilance Cell,
one Research Officer/ Tribal Development or Social Welfare
Officer would be associated in finding the social status of
eligibility of the officers. After this later judgment of the Hon’ble
Apex Court, the State Government has added two Research
Officers as members of Scrutiny Committee and as per judgment
in the case of Bharat vs. State of Maharashtra (supra), it is settled
by Division Bench of this Court that Research Officer associated
with Vigilance Cell and one functioning as Member of Scrutiny
Committee are distinct persons. In this connection, Rule 10 of
2003 Rules framed under Act No. 23 of 2001 show Research
Officer as part and parcel of vigilance cell. In Prajakta vs. State
of Maharashtra, (supra), Division Bench of this Court has after
considering this position, concluded that it is not necessary for
this Research Officer to accompany Police Officer to conduct
Police enquiry. This view is reached after considering the view
reached by the learned Single Judge of this Court. The learned
::: Downloaded on – 09/06/2013 17:54:48 :::
41
Single Judge in the case of Chhaya Namdeorao Binekar vs. State
of Maharashtra, (supra) held that Vigilance Cell enquiry need not
be strictly in accordance with exact words contained in Direction
No. 5 in Madhuri Patil’s judgment. The direction of the Hon’ble
Apex Court is held by the Division Bench in para 14 to be
fulfilled when the Research Officer functions as one of the
Members of the Committee.
24 In Prajakta vs. State of Maharashtra, (supra),
Division Bench that as per subsequent judgment in the case of
Kumari Madhuri Patil Vs. Additional Commissioner, Tribal
Development, Thane and others (Second), 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. It then notices important
observations of Hon. Apex Court in the case of Director of Tribal
Welfare, Government of A.P. Vs. Laveti Giri and another, reported
in 1995 (4) SCC 32 where while reiterating the guidelines in
Madhuri Patil’s case, Hon. Court has observed in paragraph 8 :
::: Downloaded on – 09/06/2013 17:54:48 :::
42
“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 ——……….—– ——plain/spurious persons could be
prevented.”
This Division Bench finds that the guidelines issued
by the Apex Court are in the nature of “workable principles”.
Government Resolutions dated 07.03.1996, 15.03.1996 and
14.07.1997 by State Government are found issued in the light
of modifications suggested by the Apex Court in the case of
Kumari Madhuri Patil. It then notes the observations made by
the learned Single Judge in paragraphs no.25 to 29 in the case of
Chhaya Namdeorao Binekar Vs. State of Maharashtra & others,
(supra) after noticing the relevant words in paragraph No.5 as
given by the Apex Court, & reproduces following observations of
learned Single Judge as under:
“In my view, since the State of Maharashtra has
not specifically given effect to this part of direction No.5 of::: Downloaded on – 09/06/2013 17:54:48 :::
43
the Supreme Court in its Government Resolutions, as
reproduced hereinabove and in its wisdom, it has left themanner 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 merelybecause the investigation is not carried out strictly in
accordance with the wordings of the Supreme Court referredto hereinabove, that by itself would not vitiate the final order
of the Caste Scrutiny Committee, which would besubsequently 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 thevigilance 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.”
It also finds that the Learned Single Judge has held
that the aggrieved caste certificate holder has sufficient
safeguards after vigilance inquiry. The Division Bench has then
reproduced the situations in which learned Single Judge has held
::: Downloaded on – 09/06/2013 17:54:48 :::
44
that the ultimate order of the Scrutiny Committee would not bevitiated. Those are:–(a) If the Research Officer did not
accompany the Police Officer to the actual field of investigation.
(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. These observations of the learned Single Judge have
been approval in a case decided by the Division Bench of this
Court in the matter of Sangeeta Balayya Bhurewar Vs. State of
Maharashtra & others, reported in 2003 (5) Mh.L.J. 645,
wherein said Division Bench has observed:-
“Though the learned Single Judge was dealing
with the situation regarding non compliance of direction
No.5, whereby the investigation in the social status of thecandidate was not done, the learned Single Judge found that
such non compliance cannot vitiate the finding recorded by
the Committee. We respectfully concur with the view taken by
both the Single Judges in the judgments referred to above.”
::: Downloaded on – 09/06/2013 17:54:48 :::
45
It also takes note of the fact that the same view of
reiterated by the Division Bench of this Court in Writ Petition
No.1930/2003, decided on 08.07.2003. In 2002(supp-2) Bom.
C.R. 268–Ramatai Madhukarrao Tapre vs. State Of Maharashtra,
learned Single Judge of this Court followed view in Chhaya
Namdeorao Binekar vs. State of Maharashtra, (supra) & also held
that research officer is not required to conduct field investigation
along with vigilance cell police officer.
25 Division Bench judgment in the case of Deorao G.
Umredkar vs. State of Maharashtra, reported at 2007 (5) BCR
629 relied upon by Adv. Kaptan, holds in paragraph 30 after
referring to judgment in Madhuri Patil that Research Officer is to
be associated as an expert and he is not bestowed with any
exploratory or investigative role. He has only consultative
character and entire report of vigilance cell is only an opinion
which does not bind the scrutiny committee. This Division Bench
holds him an “aide” who steps in after completion of exploration
& investigation by vigilance cell. His role is found not that of an
::: Downloaded on – 09/06/2013 17:54:48 :::
46
adjudicator. Thus it is already held by this Court that research
officer is not required to record his opinion through a reasoned
order with objective analysis. Bharat vs. State of Maharashtra
(supra) also does not lay down any such law.
Three unreported judgments relied upon by Adv.
Narnaware now need brief consideration. W.P. 2136 of 2011,
5340 of 2010 and other connected petitions decided by the
Division Bench at Aurangabad on 25/8/2011 consider validity of
a condition no.7 which denied appointment or promotion to
candidate whose caste claim was under consideration of scrutiny
committee. Petitioners assailed it as contrary to S.6(3) of Act 23
of 2001 & also directions in Madhuri Patil. State Government
attempted to justify it in public interest. Condition was held
unreasonable & set aside after noticing impossibility of
verification of caste within reasonable time due to large
pendency and S. 10 of said Act. Unreported judgment in W.P.
8413 of 2008, 260 of 2009 with other matters decided on
1/9/2009 at Bombay considered the issue whether one A.V.
Hankare, member & research officer was competent to act on
::: Downloaded on – 09/06/2013 17:54:48 :::
47
committee. This person was nominated to complete quorum due
to promotion of research officer Shri Shaikh. Division Bench has
noted that the committee was formed due to directions of Hon.
Apex Court in Madhuri Patil and it was not pointed out how Shri
Hankare was found eligible . The challenge was thus upheld.
Unreported judgment dated 20/7/2011 in W.P. 5332 of 2004
delivered by Division Bench at Nagpur (to which one of us viz. J.
B.P. Dharmadhikari is party) considers a case where the vigilance
cell report was in favour of petitioner and though claim of a
scheduled tribe candidate was being looked into, research officer
was found not associated with vigilance inquiry. There, on facts,
inconsistent position about such association appearing on record
after comparing original report with its copy supplied to
petitioner is noted by this Court. Apart from this other lacunae
having bearing on compliance with principles of natural justice
are also found. This case nowhere speaks of field inquiry by the
research officer. Thus these three unreported judgments have no
relevance in present matter. The Circular dated 06.09.2000
relied upon by petitioner also does not spell out any field
::: Downloaded on – 09/06/2013 17:54:48 :::
48
enquiry by a Research Officer.
26 The Scrutiny Committee has heavily relied upon the
unreported judgment dated 12/08/2011 of Division Bench of
. 107/2010 . There the contention
this Court at Aurangabad in W.P
that Scrutiny committee was not constituted as per notification
dated 23/6/2003 issued under S. 6 of Act no. 23/2001 has been
examined & thus question of violating the principles laid down in
Madhuri Patil did not arise. Said notification appointed the
Commissioner/Director for Tribal Research & Training Institute,
Pune as Chairman and he was not present to decide. The quorum
prescribed was 3 & there was no grievance of its breach. The
qualification for appointment to the post of Senior Research
Officer are prescribed by Rule 3 of notification dated 16/5/2006
and challenge was to appointments of one D.P. Jagtap as senior
research officer and M.G. Navghare as research officer. Both of
them were the members of scrutiny committee. The Division
Bench has found that both these persons were not possessing
requisite qualification. In this background, defence of De facto
::: Downloaded on – 09/06/2013 17:54:48 :::
49
doctrine by Scrutiny Committee & judgment in The State of
Haryana vs. The Haryana Cooperative Transport Ltd. & Others –
AIR 1997 SC 237 has been considered. Division Bench notices
that said doctrine requires an intruder who attempts to to
perform the duties of an office without authority of law &
without support of public acquiescence. His acts are not allowed
to be questioned except by some direct proceedings instituted for
the purpose by the State or by somebody claiming the office de-
jure or except when the person himself attempts to build up
some right or claim some privilege or employment by reason of
being the officer which he claims to be. The finding by Hon.
Apex Court that merely because writ of quo-warranto is not
sought in writ petition, it can not be urged that appointment
was challenged collaterally in a proceeding to challenge the
award is also noted. In this light, though the Division Bench
found appointments of Jagtap & Navghare illegal, it also found
that these two persons were not usurpers of the post and they
were issued appointment orders, albeit without authority of law.
The Division Bench therefore in paragraph 20 of its order has
::: Downloaded on – 09/06/2013 17:54:48 :::
50
remarked that decision of committee needed acceptance unless it
was found bad on some other ground. On merits, said Bench at
Aurangabad has found the decision vitiated as vigilance inquiry
there was conducted only by police officer and questions put to
find out affinity regarding sociological traits & characteristics
were not recorded by vigilance cell. Earlier Division Bench in
Ashwini Anil Chavan vs. State of Maharashtra reported at
2006(4) Mah. L.J. 415 which holds such record essential to
ascertain proper use of affinity test has been relied upon. This
Division Bench considers the order of Scrutiny Committee dated
15.10.2005 & observes that said committee has to apply its mind
to the report of research officer. In writ petition before us,
petitioner Ajaykumar has not led any evidence before the
Scrutiny Committee to establish affinity though he was aware of
the adverse opinion of Research Officer. Moreover, before this
Court also, there is no effort to demonstrate how said opinion of
Research Officer is incorrect. Moreover, the Scrutiny Committee
has independently considered the data collected by vigilance cell
and concluded that the knowledge of traits & characteristics
::: Downloaded on – 09/06/2013 17:54:49 :::
51
were mentioned due to knowledge gathered from literature. His
contention that caste recorded as “Koshti” in documents was not
really caste but profession is also rejected. This application of
mind by Scrutiny Committee is not shown to be perverse.
27 Consideration by the Hon. Apex Court of scheme of
Kerla (Scheduled Castes and Scheduled Tribes) Regulation of
Issue of Community Certificates Act, 1996 in L. Ushadevi vs.
Union of India, (supra) fully supports the contention that Act No.
23 of 2001 enacted by State of Maharashtra is a complete code.
The Hon. Apex Court has also held that Kerla Act is applicable to
employees of central government.
In another important judgment AIR 1997 S.CO. 2046
“Director of Tribal Welfare v. Laveti Giri” D/- 10 -3 -1997; Hon.
Apex Court considers A.P. Scheduled Castes, Scheduled Tribes
and Backward Classes Rules for Issue of Community Certificates
Rules (1997) (Draft Rules) under A.P. (Scheduled Castes,
Scheduled Tribes and Backward Classes) Regulation of Issue of
Community Certificate Act (16 of 1993), and finds that said
::: Downloaded on – 09/06/2013 17:54:49 :::
52
Rules are substantially in conformity with directions issued by it
in that behalf. As we are concerned with composition of Scrutiny
Committee in this writ petition, it is important to note how Hon.
Apex Court has considered the said aspect as far as Andhra
Pradesh Rules are concerned.
“4. Rule 7 provides for constitution of Scrutiny and Review
Committee at the State Level and Rule 8 deals with Scrutiny
Committee at the District Level. They are as under :
“Rule 7. Scrutiny and Review Committee (State level):
A Scrutiny and Review Committee shall be constituted at the State
Level with the following officers :
a)
1) Principal Secretary to Government Social Welfare Department.
- Chairman
2) Commissioner, Social Welfare - Member
3) Commissioner, Tribal Welfare - Member
4) Commissioner, Welfare of Backward Classes. - Member
5) Inspector General of Police, C.B.C.I.D. (P.C.R. and Vigilance
Cell). - Member
6) Additional Secretary/Joint Secretary/Deputy Secretary to the
Government Social Welfare Department. - Member
(Convenor)
::: Downloaded on - 09/06/2013 17:54:49 :::
53
b) This Scrutiny and Review Committee shall meet one in three
months or as often, depending on the necessity.
c) Presence of three members will form the required quorum for
the meeting of the Committee.
d) This Committee shall review and monitor the
functioning of the Scrutiny Committees at the District
level (constituted under Rule 8), it shall render
necessary advice to the Government on various policy
decisions to be taken for streamlining the procedures or on
any other issues related to the issuing of Community
Certificates as per Act 16 of 1993.
e) The Committee may also render necessary guidance and
advice to the Government on cases referred to it, where
divergent and conflicting enquiry reports are received by the
Government, in respect of the community claims.
Rule 8. Scrutiny Committee (District Level) :
a) In every District, a Scrutiny Committee shall be constituted with
the following officers :-
1. Joint Collector – Chairman
2. District Revenue Officer – Member (Convenor)
3. Deputy Director (Social Welfare) – Member
Deputy Director (Tribal Welfare)/District Tribal Welfare Officer.) –
Member
Deputy Director (Backward Classes Welfare)/District Backward
Classes Welfare Officer – Member
::: Downloaded on – 09/06/2013 17:54:49 :::
54
4. Officer of the Research Organisation in the Commissionerate of
SW/TW nominated by the concerned Heads of the Department. –
Member
5. Officer representing the PCR/Vigilance Cell in the District.-
Member”
6. A reading of the Rules would indicate that except some
variation, in the matter of the constitution of Committees, in Rules
7 and 8 from the guidelines issued, all other provisions are in
conformity with the guidelines issued by this Court.”
This judgment needs to be viewed in background of
earlier judgment between parties reported at AIR 1995
S.C.1506– “Director of Tribunal Welfare, Government of Andhra
Pradesh v. Laveti Giri” D/- 18 -4 -1995, where the Hon. Apex
Court has observed:–
“It is, therefore, necessary that the certificates issued
are scrutinized 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 :-”
These 15 directions are not reproduced here as above
::: Downloaded on – 09/06/2013 17:54:49 :::
55
part itself is sufficient to demonstrate its nature as guidelines.
This also becomes clear from observations of Hon. Apex Court
which appear immediately after these guidelines. Hon’ble Apex
Court in this judgment then observes:–
“7. While reiterating the above guidelines to be
workable principles, it is high time that the Government of
India would 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.”
28 The dispute whether directions in Madhuri Patil-
(supra) are mandatory or not is already settled by this Court
::: Downloaded on – 09/06/2013 17:54:49 :::
56
after noticing that Hon. Apex Court itself held it to be “working
principles” or “guide lines”. But then whether petitioner’s effort
to work out a legal injury by alleging inconsistency between the
statutory notification under S. 6 of Act 23 of 2001 & these
directions of Hon’ble issued when the field was unoccupied,
holds any water or not also needs to be gone into. Act no.23 of
2001 came into force with effect from 18/10/2001. State
Government constituted Committee as required by S. 6 thereof
for Nagpur area vide notification dated 4/6/2003. It consists of 5
members & the Commissioner/Director for Tribal Research &
Training Institute, Pune is the Chairman of this Committee while
Additional Commissioner, Tribal Development,Nagpur was its
Vice-Chairman. Deputy Director (Research) is its member-
secretary. Senior Research officer & Research Officer are its
members. On 12/7/2006, by another notification State has
effected slight change in this composition & substituted Joint
Commissioner, Nagpur as its Vice-Chairman. Committee
constituted on 9/9/1999 consisted of Director for Tribal
Research & Training Institute, Pune as Chairman, Additional
::: Downloaded on – 09/06/2013 17:54:49 :::
57
Commissioner, Tribal Development as its Vice-Chairman, Deputy
Director (Research) is its member-secretary & Two Research
officers also were its members. Notifications issued under S. 6 of
Act no. 23/2001 do not refer to this 1999 notification or to
judgments of Hon. Apex Court in Madhuri Patil’s cases. Said
Enactment also does not contain any such reference. It is
apparent that Act no. 23 of 2001 is therefore issued in exercise of
its legislative powers under Constitution of India by State
Legislature and its competence to do so or then validity of said
exercise is not in dispute before us. There are no such prayers or
arguments advanced by petitioner. S.2(k) of the Act defines
Scrutiny Committee as constituted under sub-section(1) of S.6.
Section 6 confers absolute powers upon State to constitute such
Committee and even that provision is not assailed before us. Adv.
Kaptan & Adv. Patil have advanced arguments before us to assail
attempt made by petitioner to co-relate & compare constitution
of S. 6 Committee with Committee functioning earlier as per
directions of Hon. Apex Court in Madhuri Patil’s matters.
Petitioner has not even attempted to meet their attack. Whether
::: Downloaded on – 09/06/2013 17:54:49 :::
58
an otherwise valid enactment which comes into force later on
can be scrutinized in the light of “workable principles” in
judgment delivered when that field was unoccupied is therefore
the issue that arises in this situation.
29 Precedents on validity of law enacted to get over the
judgments of a Court hold an answer to this issue. Hon. Apex
Court in AIR 1965 S.C. 1887 -“Rajeswar Prasad Misra v. State of
W.B.” , states that its observations can not be read as statutory
enactments. This judgment shows that no doubt, the law
declared by Apex Court binds Courts in India but it has directed
to remember that it does not enact. The Code of criminal
procedure contemplates that a retrial may be ordered after
setting aside the conviction or acquittal if the trial already held
is found to be unsatisfactory or leads to a failure of justice. The
Legislature has not chosen to indicate the limits of the power of a
Court in Cr.P.C. and this precedent shows that it (Hon. Apex
Court) must not be understood to have laid them down &
illustrations in its previous judgments are stated to be not
::: Downloaded on – 09/06/2013 17:54:49 :::
59
exhaustive. In AIR 1976 S.C. 2250 “I. N. Saksena v. State of M.P.”,
Hon. 4 Judges bench of Apex Court lays down that the validity of
a validating law is to be judged by applying three tests. Firstly,
whether the legislature possesses competence over the subject-
matter, and secondly, whether by validation the legislature has
removed the defect which the Courts had found in the previous
law and thirdly, whether it is consistent with the provisions of
Part III of the constitution. Applying these tests it held that the
provisions of Sections 2 and 5 of M. P. Shasakiya Sevak Anivarya
Sevanivritti Ka Vidhimanyata Karan Adhiniyan (5 of 1967) are
valid & not an encroachment on judicial power. Hon. Court has
pointed out that the distinction between a “legislative” act and an
“judicial” act is well known, though in some specific instances the
line which separates one category from the other may not be
easily discernible. Hon’ble Court states that an adjudication of
the rights of the parties according to law enacted by the
legislature is a judicial function. In the performance of this
function, the Court interprets and gives effect to the intent and
mandate of the legislature as embodied in the statute. On the
::: Downloaded on – 09/06/2013 17:54:49 :::
60
other hand, it is for the legislature to lay down the law,
prescribing norms of conduct which will govern parties and
transactions and to require the Court to give effect to that law. It
also clarifies that while, in view of this distinction between
legislative and judicial functions, the legislature cannot by a bare
declaration, without more, directly overrule, reverse or override
a judicial decision, it may, at any time in exercise of the plenary
powers conferred on it by Article 245 and 246 of the
Constitution render a judicial decision ineffective by enacting a
valid law on a topic within its legislative field fundamentally
altering or changing retrospective, curative or neutralizing effect
the conditions on which such decision is based. The rendering
ineffective of judgments or orders of competent Courts and
tribunals by changing their basis by legislative enactment is a
well known pattern of all validating Acts. Such validating
legislation which removes the causes for ineffectiveness or
invalidity of action or proceedings is not an encroachment on
judicial power. Shri Patil has relied upon AIR 2005 S.C. 3446
“State Bank’s Staff Union (Madras Circle) v. Union of India” where
::: Downloaded on – 09/06/2013 17:54:49 :::
61
“I. N. Saksena v. State of M.P.”(supra) has been followed to state
that the Legislature cannot by a mere declaration, without
anything more, directly overrule, reverse or override a judicial
decision. However, it may, at any time in exercise of the plenary
powers conferred on it by the Constitution render a judicial
decision ineffective by enacting a valid law on a topic within its
legislative field, fundamentally altering or changing with
retrospective, curative or neutralizing effect the condition on
which such decision is based. Whenever any amendment is
brought in force retrospectively or any provision of the Act is
deleted retrospectively, in this process rights of some are bound
to be effective one way or the other. In every case the exercise by
legislature by introducing a new provision or deleting an existing
provision with retrospective effect per se does not amount to
violation of Art. 14 of the Constitution. The legislature can
change the basis on which a decision is given by the Court and
thus change the law in general, which will affect a class of
persons and events at large. As laid down by Hon. Apex Court,
such legislation cannot, however, set aside an individual decision
::: Downloaded on – 09/06/2013 17:54:49 :::
62
inter parties and affect their rights and liabilities alone. Such an
act on the part of the legislature amounts to exercising the
judicial power by the State and to function as an appellate Court
or Tribunal, which is against the concept of separation of powers.
Recently in AIR 2010 S.C. 3143 -“A. Manjula Bhashini v. M.D.,
A.P. Women’s Co-op. Finance Corpn. Ltd.“, Hon’ble Apex Court has
held that the language of first proviso to S. 7 of A.P. (Regulation
of Appointments to Public Services and Rationalisation of Staff
Pattern of Pay Structure) Act (2 of 1994), by which the policy of
regularization was engrafted in the 1994 Act revealed that the
amendments were made with the sole object of removing the
ambiguity in the policy contained in G. O. dated 22-4-1994 and
the same were not intended to nullify or override the judgment
in (1998) 2 Andh LT 5 (SC). It found that policy of
regularization as contained in first proviso to S.7 of Act No. 27 of
1998 is one time measure intended to benefit only those daily
wage employees, who completed 5 years continuous service on
or before 25-11 1993 & employees who completed 5 years
service after 25-11-1993 cannot claim regularization. S.7A
::: Downloaded on – 09/06/2013 17:54:49 :::
63
providing of abatement of claims arising under any Government
order, judgment, decree or order of any Court, Tribunal or other
authority was held not an encroachment on Court’s power of
judicial review.
30. These judgments of Hon’ble Apex Court, therefore,
show that an error or lacuna judicially noticed and resulting in
vitiation of a legislation can be cured by a proper legislation. It is
obvious that the legislature always intended to enact a valid law
within four corners of its powers and Hon’ble Apex Court has
found that such factors vitiating it can always be rectified by the
legislature even retrospectively. Thus when an adjudication can
be avoided by competent legislation, here where there was no
legislation at all, it can not be perceived that Hon. Apex Court
while issuing various directions in its judgments in Madhuri Patil
(supra) wanted State Legislature not to exercise its plenary
powers under schedule VII or then expected it to exercise the
same in particular manner. Its no doubt true that in view of
unique position of Hon’ble Apex Court in constitutional set-up of
::: Downloaded on – 09/06/2013 17:54:49 :::
64
this Country, such directions need to be given due importance &
consideration by State Legislature. The same are obviously
guidelines to control exercise of a power which otherwise may
appear un-canalized. However, merely because State Legislature
has in exercise of its constitutional powers enacted a law in
particular manner or even little differently than said “workable
principles”, it can not be labeled as unconstitutional or bad as it
does not cease to be law under schedule VII of the Constitution
of India or then it does not violate any constitutional safeguards.
Three tests laid down by the Hon’ble Apex Court & noted above,
when applied here, do not lead to any such finding of invalidity
of Act no. 23 of 2001. The Hon’ble. Apex Court has only
recognized need to have a uniform legislation but has not issued
any mandate to legislate and, normally, Courts may not issue
such a direction or a direction to adopt particular scheme in
proposed Statute. Hence, effort undertaken by petitioner to show
violation of the “workable principles” by a valid State Enactment
is itself misconceived. Said effort, however, was bound to
succeed had the field still remained unoccupied.
::: Downloaded on – 09/06/2013 17:54:49 :::
65
31. Though it is argued by learned Counsel for petitioner
that 2003 Rules framed by State of Maharashtra under Act no.
23 of 2001 have not been placed before Hon. Apex Court & its
approval has not been obtained as in AIR 1997 S.CO. 2046
“Director of Tribal Welfare v. Laveti Giri” D/- 10 -3 -1997; no
direction of Hon. Apex Court or any other law obliging State to
do so has been pointed out. This 1997 judgment is in the
backdrop of its 1995 judgment at AIR 1995 S.C. 1506 “Director
of Tribunal Welfare, Government of Andhra Pradesh v. Laveti
Giri“(supra), where after considering the serious problem &
usurption by spurious candidates, (same Hon’ble. Judges who
decided Madhuri Patil) Hon’ble Court has observed– “After falsely
gaining entry, resort to dilatory tactics and create hurdles in
completion of the inquiries by the Scrutiny Committee. It is the
parent or the guardian who may play fraud claiming false status
certificate of his child. It is, therefore, necessary that the
certificates issued are scrutinized 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
::: Downloaded on – 09/06/2013 17:54:49 :::
66
certificates, their scrutiny and their approval, which may be the
following”. Nature of these guidelines is already narrated by us
above. In this situation, when there is no challenge to
constitutionality of Act no. 23 of 2001 and directions issued by
Hon. Court are only “workable principles” which do not in any
way eclipse the legislative powers of State, We do not find any
merit in the petitioner’s challenge to composition of Scrutiny
Committee.
32. Moreover, here affidavit filed on behalf of respondent
2 Scrutiny Committee denying the assertion of petitioner about
its composition. The scrutiny Committee has pointed out S. 6 of
Act no. 23 of 2001 as its source and hence, non-applicability of
guidelines in Madhuri Patil. It has also pointed out absence of
pleadings in writ petition to enable this Court to undertake
scrutiny into its composition. Without prejudice, it is pleaded on
affidavit that Commissioner/Director for Tribal Research &
Training ,Pune who is Chairman of the Committee is an IAS
officer in the rank of Joint Secretary. Second Member of the
::: Downloaded on – 09/06/2013 17:54:49 :::
67
Committee i.e. Additional Commissioner is disclosed to be the
person of the rank of Director of Tribal Welfare. Hence, in matter
before us, constitution of the committee can not be said to be
even contrary to direction number 4 in Madhuri Patil’s judgment
of Hon’ble Apex Court. We also note that petitioner has not
raised any objection to the composition of Scrutiny Committee at
the earliest before the Committee itself or then before the State
Government. On the contrary, he participated in its proceedings
effectively & took efforts to have an adjudication in his favour. It
is also not his case that during any of the hearings there was no
quorum. Quorum is explained in paragraph 7 of its judgment in
The Punjab University, Chandigarh vs. Vijay Singh Lamba & Ors,
(supra) by Hon’ble Apex Court to mean the number of persons
adequate to validly transact business of any body. Here, there is
no effort to even urge that the business transacted by the
Scrutiny Committee was vitiated on any count. We therefore find
that doctrine of de-facto is also attracted in present case. The
Chairman of the Scrutiny Committee,even if held to be not of
rank expected by Hon’ble Apex Court, it is not sufficient to vitiate
::: Downloaded on – 09/06/2013 17:54:49 :::
68
otherwise valid adjudication here. The Scrutiny Committee
which has passed impugned order consisted of an officer of the
rank of joint secretary, other two highly placed officers & two
research officers. Hence, in the absence of any arguments of
resulting prejudice, even if contention of petitioner is presumed
to be true, still the above doctrine dis-entitles him to any relief.
The State of Haryana vs. The Haryana Cooperative Transport Ltd.
& Others (supra) unreported judgment dated 12/08/2011 of
Division Bench of this Court at Aurangabad in W.P. 107/2010
apply with full vigour. Even otherwise, We have already noticed
that he has not approached this Court with clean hands & his
blameworthy conduct is itself sufficient to deny him the relief.
This is not the matter where by picking up some lacuna here &
there, and without pointing out its impact on consideration of
merits of controversy by a Scrutiny Committee, the petitioner
can hope to continue to enjoy that status to which he is not
legally entitled. Petitioner who failed to discharge the basic
burden to establish his caste claim by producing relevant
material has attempted to throw entire burden on State
::: Downloaded on – 09/06/2013 17:54:49 :::
69
Government and by abusing the process succeeded in securing
second term for himself. Since we are not taking a view different
than any binding precedent in the matter,there is no scope for
reference to larger bench. The necessary facts are pleaded are
placed by the Scrutiny Committee & hence, reference to other
judgments cited before us is not called for.
33.
We accordingly find no merit in the matter and writ
petition is dismissed. Rule is discharged. However, in the facts
and circumstances of the case, there shall be no orders as to
costs.
JUDGE JUDGE
At this stage, Shri Narnaware, learned counsel for the
petitioner seeks continuation of interim order, which is already
operating, for a period of six weeks. Shri Patil, learned counsel
for respondent No.2 points out that here the question is of
::: Downloaded on – 09/06/2013 17:54:49 :::
70
continuation on a post of Municipal Councillor.
In the interest of justice, we continue the interim
orders already operating for a period of six weeks from today.
The same shall cease to operate automatically after expiry of the
said period.
JUDGE JUDGE
*******
*GS./
dragon
::: Downloaded on - 09/06/2013 17:54:49 :::