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SCA/2565/2011 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2565 of 2011
With
SPECIAL
CIVIL APPLICATION No. 4365 of 2011
With
SPECIAL
CIVIL APPLICATION No. 4369 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
PATELIYA
SONALBEN KALUBHAI - Petitioner(s)
Versus
DIRECTOR
OF PRIMARY EDUCATION & 3 - Respondent(s)
=========================================
Appearance :
MS
MAMTA R VYAS for
Petitioner(s) : 1,
MS KRINA CALLA, LD. ASST. GOVERNMENT PLEADER
for Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for Respondent(s) :
1, 3,
DS AFF.NOT FILED (N) for Respondent(s) :
4,
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 25/08/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR. JUSTICE J.B. PARDIWALA)
As
common questions of fact and law are involved in all the three above
referred petitions, they were heard together and are being disposed
of by this common judgment and order.
In
all the three captioned petitions, the controversy relates to the
genuineness of the Caste Certificate issued in favour of the
respective petitioners. It appears that the Vigilance Officer
working in the office of Scheduled Tribe Department, Panchmahals,
Godhra, has come to the conclusion that the respective petitioners
have obtained the Caste
Certificate fraudulently. The Vigilance Officer also came to
the conclusion that the Caste
Certificate is a forged and bogus certificate. Accordingly
the Director of Primary Education, Gujarat State, passed orders in
exercise of powers under the Gujarat Educational Institutions
(Pre-primary and Primary Education Training Colleges) Rules, 1984
and cancelled the admission obtained by the petitioners in the
respective colleges on the strength of the Caste
Certificate.
At
this stage it would be expedient to state the facts of each of the
three petitions in nutshell.
Special
Civil Application No.2565 of 2011
The
petitioner requested for Caste
Certificate, which was issued by respondent
No.2 after verifying the necessary record on 23rd July,
2007. The petitioner passed her examination of standard 12, which
was held in the month of March, 2010 securing 77.29%. She wanted to
take admission in P.T.C. course and therefore, applied for admission
through Centralised Admission Process. The petitioner was admitted
in respondent
No.4 College, which is a self-finance college. The petitioner
studied for whole year in respondent
No.4 College. The respondent
No.4 College vide letter dated 19th February, 2011
informed the petitioner that respondent
No.1-Director of Primary Education, vide order dated 17th
January, 2011 has cancelled her admission in P.T.C. on the ground
that the Caste
Certificate, which was produced, has been found to be forged
and fabricated.
Special
Civil Application No.4369 of 2011
The
petitioner belongs to “Raval Bhil” community, which is
notified as Scheduled Tribe. The father and forefathers of the
petitioner belongs to “Raval Bhil”, which is included in
the list of Scheduled Tribe community. It is a case of the
petitioner that her father is having land falling within the ambit
of Section 73AA of the Bombay Land Revenue Code. It is also the case
of the petitioner that father and other family members have been
issued Caste
Certificate by the Competent Authority and after verifying
the necessary records, Caste
Certificate was issued in favour of the petitioner by the
Competent Authority on 07th June, 2007. The petitioner
got admitted in the P.T.C. course in open category on merits and
studied for two years in the P.T.C. course and in second year, the
petitioner applied for scholarship. It is her case that neither the
scholarship is given to the petitioner nor any other benefit of
being candidate of Scheduled Tribe has been extended in her favour.
However, respondent
No.4 college informed the petitioner that respondent
No.1-Director of Primary Education, has vide order dated 05th
February, 2011 not only cancelled the admission of the petitioner,
but also directed to initiate appropriate criminal action.
Special
Civil Application No.4365 of 2011
The
petitioner belongs to “Hindu Bhil” community, which is
notified as Scheduled Tribe. It is the case of the petitioner that
her father and forefathers also belong to “Hindu Bhil”
community. The petitioner passed her standard 12 examination
securing 71.29% of marks and obtained admission in the P.T.C. course
through Centralised Admission Procedure. As the petitioner had
obtained 71.29% in standard 12, she got admission in open category
on the basis of merit in respondent
No.4 college. At the time of applying for admission, the petitioner
attached all the Certificates including the Caste
Certificate, which was issued in her favour by the Vigilance
Officer, Tribal Department, Panchmahals, Godhra dated 28th
June, 2000. It is the case on behalf of the petitioner that family
members of the petitioner have also been issued the Caste
Certificate and based on that, Caste
Certificate was issued in favour of the petitioner certifying
her to be a member of Scheduled Tribe belonging to the category of
Hindu Bhil. It is her case that she studied for the whole year in
the first year of P.T.C. course and at the fag end of the academic
year, Caste Certificate was cancelled and consequently admission was
also ordered to be cancelled.
In
all the above three captioned petitions, contention is common. The
contention is that while passing the impugned orders cancelling the
admission from the college and also at the time of declaring the
Caste Certificate
to be bogus and obtained fraudulently, no opportunity of hearing has
been given to the petitioners.
On
01st July, 2011 this Court passed the following order:
“Counsel
for the State is allowed a week’s time to get instructions and find
out as to whether any Scrutinee Committee has been constituted for
finding out the validity of the caste certificate issued in favour
S.C./S.T. candidates as prayed for by the petitioners. If such
Committee has been constituted, then, to file a reply as to whether
or not the certificates issued to the petitioners were considered by
the such Committee by giving opportunity of hearing to the
petitioners. Post the matters on 15th July 2011 within ten cases.”
In
compliance of the order dated 01st July, 2011, the
Vigilance Officer, Tribal Department, Panchmahals, filed an
affidavit-in-reply justifying as to how and why the Caste
Certificate has been cancelled. In all the three writ
petitions the affidavit is practically verbatim the same. In the
affidavit-in-reply it has been stated as under:
“1. I
have already filed an affidavit in reply in this matter on merits of
the case and therefore this affidavit is only filed for the limited
issue observed by this Hon’ble Court vide order dated 01.07.2011,
whereby this Hon’ble Court had directed the state authority to file
an affidavit on two counts; Firstly to state that whether
any scrutiny committee has been constituted by the State Government
pursuant to the judgment of Apex Court in Madhuri Patil’s case and
secondly on the point that whether the caste certificate of the
petitioners were considered by such committee or not?
2. I
submit that there is a scrutiny committee constituted by the State
Government on 28.05.2010. A copy of the same is annexed hereto and
marked as Annexure R I. Wherein the committee is consisting
of 5 members i.e.
(1) Additional
Secretary / Joint Secretary (Caste Certificate Chairman, Schedule
Tribe Department), Sachivalaya, Gandhinagar
(2) Commissioner
(Tribal Department), Premetive Group, Gandhinagar Members
(3) Director
of Tribal Research & Training Centre, Gujarat Vidhyapith,
Ahmedabad, Member
(4) Deputy
Commissioner (Caste Certificate) Birsa Muda Bhavan, Gandhinagar,
Member Secretary
(5) Section
Officer (Caste Certificate), Tribal Development Department,
Gandhinagar
3. I
submit that so far as the certificates of the petitioner whether the
same are considered by the scrutiny committee or not? I humbly
submit that the same were never placed before the scrutiny committee
in as much as that the same were never issued by any competent
authority; which is precise submission of the respondent authority
and therefore the same were taken into consideration by vigilance
officer of the Tribal Development Department and in the same,
the vigilance officer has prepared the report that certificate
produced by the petitioner is bogus and forged one and upon such
report the impugned order is passed.
4. I
most humbly submit that so far as the securtinity of the Caste
Certificate the petitioner is concern the same is only for those
certificates which are issue by the competent authority and same are
issued by the competent authority upon documents produced by the
candidates but in this case certificates were never issued by
the competent authority and therefore there is no question of
placing the same before the committee arises and hence petitioner
has not only forged the Caste Certificate but also has taken
undue-advantage of these certificate for obtaining admission and
therefore petition deserves to be dismissed.”
We
have heard learned advocate Ms.Mamta R. Vyas appearing for
respective petitioners and learned Assistant Government Pleader
Ms.Krina Calla appearing for the respondents.
Taking
into consideration the peculiar facts of the case and controversy
involved, we are of the view that the Authorities have committed
error apparent on the face of the record. Way back in the year 1994
the Apex Court in the case of Kumari Madhuri Patil and another Vs
Additional Commissioner, Tribal Department and others reported
in 1994 (6) SCC 241 settled
the entire position of law as regards the admission
obtained by producing false and fabricated Caste
Certificate and also
laying down the procedure to deal such type of cases. Before we look
into the judgment of the Supreme Court in the case of Kumari Madhuri
Patil and another (Supra), it is necessary to state that the
respondents
have fairly conceded that the Caste
Certificate of the
respective petitioners were not placed before the Scrutiny Committee
constituted by the State Government in this regard and the final
decision was taken by the Vigilance Officer working in the office of
the Tribal Department, Panchmahals, Godhra. The respondents
have tried to justify their stand that it was not incumbent or
necessary for the Scrutiny Committee to look into the matter because
the Certificates, which were produced by the petitioners, were
obtained by playing fraud and they were not issued by any of the
Authorities empowered under the Rules or Regulations. The
respondents have
taken a stand that since the Certificates were bogus, it was within
the powers and competence of Vigilance Officer to declare the same
as forged Certificates. They have also tried to justify that
admissions have been rightly cancelled.
We
are of the view that firstly cancellation of Caste Certificate and
based on such cancellation when the admission of respective
petitioners are cancelled, it entails civil consequences. Once any
action entails civil consequences, then before such action is taken,
person who is likely to meet with the civil consequences, may be
heard and should be given an opportunity to defend. This is exactly
what the Supreme Court has said in the case of Kumari Madhuri Patil
and another (Supra) while laying down the procedure. We would like
to quote paragraph Nos.13, 14, 15 and 16 of the judgment.
“13.
The admission wrongly gained or appointment wrongly
obtained on the basis of false social status certificate
necessarily has the effect of depriving the genuine Scheduled
Castes or Scheduled Tribes or OBC candidates as enjoined in the
Constitution of the benefits conferred on them by the
Constitution. The genuine candidates are also denied admission to
educational institutions or appointments to office or posts under
a State for want of social status certificate. The ineligible or
spurious persons who falsely gained entry resort to dilatory
tactics and create hurdles in completion of the inquiries by the
Scrutiny Committee. It is true that the applications for
admission to educational institutions are generally made by a
parent, since on that date many a time the student may be a
minor. It is the parent or the guardian who may play fraud claiming
false status certificate. It is, therefore, necessary that the
certificates issued are scrutinised at the earliest and with
utmost expedition and promptitude. For that purpose, it is
necessary to streamline the procedure for the issuance of social
status certificates, their scrutiny and their approval, which may
be the following:
1.
The application for grant of social status certificate shall be
made to the Revenue Sub-Divisional Officer and Deputy Collector or
Deputy Commissioner and the certificate shall be issued by such
officer rather than at the Officer, Taluk or Mandal level.
2.
The parent, guardian or the candidate, as the case may be, shall
file an affidavit duly sworn and attested by a competent gazetted
officer or non-gazetted officer with particulars of castes and
sub-castes, tribe, tribal community, parts or groups of tribes or
tribal communities, the place from which he originally hails from
and other particulars as may be prescribed by the Directorate
concerned.
3.
Application for verification of the caste certificate by the
Scrutiny Committee shall be filed at least six months in advance
before seeking admission into educational institution or an
appointment to a post.
4.
All the State Governments shall constitute a Committee of three
officers, namely, (I) an Additional or Joint Secretary or any
officer higher in rank of the Director of the department concerned,
(II) the Director, Social Welfare / Tribal Welfare / Backward Class
Welfare, as the case may be, and (III) in the case of Scheduled
Castes another officer who has intimate knowledge in the
verification and issuance of the social status certificates. In the
case of the Scheduled Tribes, the Research Officer who has intimate
knowledge in identifying the tribes, tribal communities, parts of or
groups of tribes or tribal communities.
5.
Each Directorate should constitute a vigilance cell consisting of
Senior Deputy Superintendent of Police in over-all charge and such
number of Police Inspectors to investigate into the social status
claims. The Inspector would go to the local place of residence and
original place from which the candidate hails and usually resides or
in case of migration to the town or city, the place from which he
originally hailed from. The vigilance officer should personally
verify and collect all the facts of the social status claimed by the
candidate or the parent or guardian, as the case may be. He should
also examine the school records, birth registration, if any. He
should also examine the parent, guardian or the candidate in
relation to their caste etc. or such other persons who have
knowledge of the social status of the candidate and then submit a
report to the Directorate together with all particulars as envisaged
in the proforma, in particular, of the Scheduled Tribes relating to
their peculiar anthropological and ethnological traits, deity,
rituals, customs, mode of marriage, death ceremonies, method of
burial of dead bodies etc. by the castes or tribes or tribal
communities concerned etc.
6.
The Director concerned, on receipt of the report from the vigilance
officer if he found the claim for social status to be “not
genuine” or ‘doubtful’ or spurious or falsely or wrongly
claimed, the Director concerned should issue show-cause-notice
supplying a copy of the report of the vigilance officer to the
candidate by a registered post with acknowledgement due or through
the head of the educational institution concerned in which the
candidate is studying or employed. The notice should indicate that
the representation or reply, if any, would be made within two weeks
from the date of the receipt of the notice and in no case on
request not more than 30 days from the date of the receipt of the
notice. In case, the candidate seeks for an opportunity of hearing
and claims an inquiry to be made in that behalf, the Director on
receipt of such representation / reply shall convene the committee
and the Joint / Additional Secretary as Chairperson who shall give
reasonable opportunity to the candidate / parent / guardian to
adduce all evidence in support of their claim. A public notice by
beat of drum or any other convenient mode may be published in the
village or locality and if any person or association opposes such
a claim, an opportunity to adduce evidence may be given to him /it.
After giving such opportunity either in person or through counsel,
the Committee may make such inquiry as it deems expedient and
consider the claims vis-a-vis the objections raised by the
candidate or opponent and pass an appropriate order with brief
reasons in support thereof.
7.
In case the report is in favour of the candidate and found to be
genuine and true, no further action need be taken except where the
report or the particulars given are procured or found to be false or
fraudulently obtained and in the latter event the same procedure as
is envisaged in para 6 be followed.
8.
Notice contemplated in para 6 should be issued to the parents /
guardian also in case candidate is minor to appear before the
Committee with all evidence in his or their support of the claim for
the social status certificates.
9.
The inquiry should be completed as expeditiously as possible
preferably by day-to-day proceedings within such period not
exceeding two months. If after inquiry, the Caste Scrutiny Committee
finds the claim to be false or spurious, they should pass an order
cancelling the certificate issued and confiscate the same. It
should communicate within one month from the date of the conclusion
of the proceedings the result of enquiry to the parent / guardian
and the applicant.
10.
In case of any delay in finalising the proceedings, and in the
meanwhile the last date for admission into an educational
institution or appointment to an officer post, is getting expired,
the candidate be admitted by the Principal or such other authority
competent in that behalf or appointed on the basis of the social
status certificate already issued or an affidavit duly sworn by the
parent / guardian / candidate before the competent officer or
non-official and such admission or appointment should be only
provisional, subject to the result of the inquiry by the Scrutiny
Committee.
11.
The order passed by the Committee shall be final and conclusive
only subject to the proceedings under Article 226 of the
Constitution.
12.
No suit or other proceedings before any other authority should lie.
13.
The High Court would dispose of these cases as expeditiously as
possible within a period of three months. In case, as per its
procedure, the writ petition/miscellaneous petition / matter is
disposed of by a Single Judge, then no further appeal would lie
against that order to the Division Bench but subject to special
leave under Article 136.
14.
In case, the certificate obtained or social status claimed is found
to be false, the parent / guardian / the candidate should be
prosecuted for making false claim. If the prosecution ends in a
conviction and sentence of the accused, it could be regarded as an
offence involving moral turpitude, disqualification for elective
posts or offices under the State or the Union or elections to any
local body, legislature or Parliament.
15.
As soon as the finding is recorded by the Scrutiny Committee
holding that the certificate obtained was false, on its
cancellation and confiscation simultaneously, it should be
communicated to the educational institution concerned or the
appointing authority by registered post with acknowledgement due
with a request to cancel the admission or the appointment. The
Principal etc. of the educational institution responsible for
making the admission or the appointing authority, should cancel the
admission / appointment without any further notice to the candidate
and debar the candidate from further study or continue in office in
a post.
14.
Since this procedure could be fair and just and shorten the undue
delay and also prevent avoidable expenditure for the State on the
education of the candidate admitted / appointed on false social
status or further continuance therein, every State concerned should
endeavour to give effect to it and see that the constitutional
objectives intended for the benefit and advancement of the genuine
Scheduled Castes / Scheduled Tribes or backward classes, as the
case may be are not defeated by unscrupulous persons.
15.
The question then is whether the approach adopted by the High
Court in not elaborately considering the case is vitiated by an
error of law. High Court is not a court of appeal to appreciate
the evidence. The Committee which is empowered to evaluate the
evidence placed before it when records a finding of fact, it ought
to prevail unless found vitiated by judicial review of any High
Court subject to limitations of interference with findings of
fact. The Committee when considers all the material facts and
records a finding, though another view, as a court of appeal may be
possible, it is not a ground to reverse the findings. The court has
to see whether the Committee considered all the relevant material
placed before it or has not applied its mind to relevant facts
which have led the Committee ultimately record the finding. Each
case must be considered in the backdrop of its own facts.
16.
Whether appellants are entitled to their further continuance in the
studies is the further question. Often the plea of equities or
promissory estoppel would be put forth for continuance and
completion of further course of studies and usually would be found
favour with the courts. The courts have constitutional duty and
responsibility, in exercise of the power of its judicial review, to
see that constitutional goals set down in the Preamble, the
Fundamental Rights and the Directive Principles of the Constitution,
are achieved. A party that seeks equity, must come with clean
hands. He who comes to the court with false claim, cannot plead
equity nor the court would be justified to exercise equity
jurisdiction in his favour. There is no estoppel as no promise of
the social status is made by the State when a false plea was put
forth for the social status recognised and declared by the
Presidential Order under the Constitution as amended by the SC &
ST (Amendment) Act, 1976, which is later found to be false.
Therefore, the plea of promissory estoppel or equity have no
application. When it is found to be a case of fraud played by the
concerned, no sympathy and equitable considerations can come to his
rescue. Nor the plea of estoppel is germane to the beneficial
constitutional concessions and opportunities given to the genuine
tribes or castes. Courts would be circumspect and vary in
considering such cases.
It
is very clear that the Vigilance Officer has to prepare a report
after personally verifying and collecting all the facts of the
social status claimed by the candidate or parent or guardian, as the
case may be. The Vigilance Officer is also obliged to examine school
record, birth register, if any. He should also examine the parent,
guardian or the candidate in relation to their castes, etc., or such
other person, who have knowledge of the social status of the
candidate and then submit a report to the Directorate together with
all particulars as envisaged in the proforma, in particular, of the
Scheduled Tribes relating to their peculiar anthropological and
ethnological traits, deity, rituals, customs, mode of marriage, etc.
On the basis of the report of the Vigilance Officer, if it is found
that the claim for social status is not genuine, then the Director
concern has to issue show cause notice supplying a copy of the
report of the Vigilance Officer to the candidate. The Supreme Court
has also said that in case candidate seeks for opportunity of
hearing and claims an inquiry to be made in that behalf, the
Director on receipt of such representation / reply shall convene the
committee and the Joint / Additional Secretary as Chairperson who
shall give reasonable opportunity to the candidate / parent /
guardian to adduce all evidence in support of their claim.
In
the present case, as it is evident, no such procedure has been
followed. Here in the present case, the Vigilance Officer without
giving any opportunity of hearing to any of the petitioners, has
straightway come to the conclusion based upon some inquiry that the
Caste Certificates, which were issued in favour of each of the
petitioners are false. Since the Vigilance Officer gave the report
in this behalf, respondent No.1 based on the said report, ordered
cancellation of the admission from the respective colleges.
We
are of the view that serious prejudice is caused to the petitioners
by adopting such a high-handed procedure. When the Supreme Court
has very clearly laid down the entire procedure in this regard, the
Authorities concerned were obliged to follow the guidelines given by
the Apex Court in the case of Kumari Madhuri Patil and another
(Supra). It appears that in flagrant disregard of the judgment of
the Supreme Court, a very high-handed action has been taken in the
present case.
We
are of the view that the impugned orders challenged in the
respective petitions deserves to be quashed and set aside and the
entire matter needs to be ordered to be remitted to the respondents
for fresh considerations after giving reasonable opportunity of
hearing to each of the petitioners.
We
dispose of all the three petitions by issuing appropriate directions
as under:
(i) The
Vigilance Officer shall supply a copy of the inquiry report to each
of the petitioners on the basis of which the Vigilance Officer has
come to the conclusion that the Caste Certificates are false and
bogus;
(ii) The
Vigilance Officer, Tribal Department, Godhra is directed to place
all the three Caste Certificates of the respective petitioners
before the Scrutiny Committee constituted by the State Government.
The Scrutiny Committee shall give an opportunity of hearing to the
petitioners in support of their claim. The Committee shall also give
reasonable opportunity to the parents / guardians of the petitioners
herein to adduce all the evidence in support of their claim.
The Committee shall inform the petitioners and their parents /
guardians well in advance about the date and time of hearing to
enable the petitioners and the parents / guardians of the
petitioners to remain present with the necessary evidence to put
forward their claims as regards their respective caste;
(iii) The
Scrutiny Committee shall independently inquire as regards the
genuineness of the Caste Certificates without being influenced in
any manner by any report prepared by the Vigilance Officer;
(iv) The
Scrutiny Committee constituted by the State Government shall
expeditiously complete the inquiry within a period of two months and
inform the petitioners and parents / guardians about the conclusion
of the proceedings;
In
above view of the matter, each of the petitions succeed. The
impugned orders passed by respondent No.1 cancelling the admission
from the respective colleges is hereby quashed and set aside. The
petitioners shall be permitted to continue with their studies in the
respective colleges till the final conclusion of the proceedings,
which the Scrutiny Committee shall undertake for the purpose of
ascertaining the genuineness of the Caste Certificates. All the
three writ petitions are disposed of accordingly with no order as to
costs.
(S.J.
Mukhopadhaya, C.J.)
(J.B.
Pardiwala, J)
Anup
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