{"id":31411,"date":"2011-11-11T00:00:00","date_gmt":"2011-11-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajaykumar-yadaorao-nikhar-vs-state-of-maharashtra-on-11-november-2011"},"modified":"2015-11-11T18:05:27","modified_gmt":"2015-11-11T12:35:27","slug":"ajaykumar-yadaorao-nikhar-vs-state-of-maharashtra-on-11-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajaykumar-yadaorao-nikhar-vs-state-of-maharashtra-on-11-november-2011","title":{"rendered":"Ajaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ajaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011<\/div>\n
Bench: B. P. Dharmadhikari, A.P. Bhangale<\/div>\n
                                    1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                    \n              WRIT PETITION NO.  5377   OF  2004\n\n\n\n\n                                            \n     Ajaykumar Yadaorao Nikhar,\n     aged about 38 years,\n\n\n\n\n                                           \n     occupation - Social Service,\n     r\/o Ram Mandir Ward,\n     Bhandara, Tah. & Dist. Bhandara.         ...   PETITIONER\n\n\n\n\n                                  \n                Versus\n                   \n     1. State of Maharashtra,\n        through its Secretary,\n        Tribal Development Department,\n                  \n        Mantralaya, Mumbai 400 032.\n\n     2. Scheduled Tribe Caste Certificate\n        Scrutiny Committee, Adiwasi Vikas\n      \n\n\n        Bhawan, Giripeth, Nagpur.\n   \n\n\n\n     3. The Collector, Bhandara.\n\n     4. Smt. Leena Kowe,\n\n\n\n\n\n        aged about Adult, occupation -\n        Not known, r\/o Jai Gondwana \n        Mahila Bahuuddeshiya Vikas\n        Mandal, Baliramji Maikam's\n        House, Baba Mastanshah Ward,\n\n\n\n\n\n        Bhandara.\n\n     5. Smt. Anita Tekam,\n        aged about - Adult, occupation -\n        Not known, r\/o Ward No. 4-A,\n        Municipal Council, Bhandara.\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 17:54:47 :::\n                                           2\n\n     6. Bharat Tulosiram Kumbhare,\n\n\n\n\n                                                                          \n        aged about 39 years, r\/o\n        Ram Mandir Ward, Bhandara,\n\n\n\n\n                                                  \n        Taluka & District - Bhandara.                ...   RESPONDENTS\n\n\n\n\n                                                 \n     Shri S.R. Narnaware, Advocate for the petitioner.\n     Shri D.M. Kale, AGP for respondents No. 1 & 3.\n     Shri P.B. Patil, Advocate for respondent No. 2.\n     Shri C.S. Kaptan, Advocate for respondent No. 6.\n\n\n\n\n                                     \n                  .....\n\n\n                  \n                       \n                          \n                       CORAM :   B.P. DHARMADHIKARI\n                                 &   A. P. BHANGALE, JJ.\n<\/pre>\n
     DATE OF RESERVING JUDGMENT    : OCTOBER    10, 2011.\n<\/p>\n
     DATE OF PROUNCING JUDGMENT   : NOVEMBER 11, 2011.\n<\/p>\n
     JUDGMENT :  (Per B.P. DHARMADHIKARI, J.)<\/p>\n
     1.           Order   dated   16\/10\/2004   passed   by   Caste   Scrutiny <\/p>\n
     Committee invalidating caste claim of petitioner as belonging to <\/p>\n
     Halba scheduled tribe forms subject matter of  challenge in this <\/p>\n
     matter. Impugned order is under Maharashtra Scheduled Castes, <\/p>\n
     Scheduled   Tribes,   De-notified   Tribes   (Vimukta   Jatis)   Nomadic <\/p>\n
     Tribes, Other Backward Classes and Special Backward Category <\/p>\n
     (Regulation   of   Issuance   and   Verification   of)   Caste   Certificate <\/p>\n
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\n                                            3<\/span>
\n     Act,2000–referred to as Act no.23 of 2001 hereafter. Petitioner <\/p>\n
     has   sought   that   caste   certificate   on   9\/3\/1983   &   contested <\/p>\n
     election   as   councilor   of   Municipal   Council,   Bhandara   on <\/p>\n
     22\/1\/2002 against a reserved seat. Because of this invalidation, <\/p>\n
     Collector had declared him disqualified on 6\/11\/2004 and it was <\/p>\n
     recalled on 22\/11\/2004 as this Court on 11\/11\/2004 stayed the <\/p>\n
     order   of   Scrutiny   Committee.     Thereafter,   during   pendency   of <\/p>\n
     this petition & because of orders dated 29\/11\/2004 in it, he has <\/p>\n
     been elected again in January,2007 as scheduled tribe candidate <\/p>\n
     on the strength of same caste certificate & current tenure  is due <\/p>\n
     to expire on 2012.\n<\/p>\n
     2               In this background, we have heard Adv. Narnaware <\/p>\n
     for petitioner,   Adv.  Patil  for  respondent   2  Scrutiny Committee, <\/p>\n
     Adv.   Kaptan   for   respondent   6   &    Shri   Kale,   learned   AGP   for <\/p>\n
     respondents No. 1 & 3<\/span><\/p>\n
     3                Advocate Narnaware has basically raised 4 issues.\n<\/p>\n
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\n                                              4<\/span><\/p>\n
     The constitution of Committee according to him is not legal as it <\/p>\n
     is   in   breach   of   mandatory   directions   issued   by   the   Hon.   Apex <\/p>\n
     Court   in   case   of  Madhuri   Patil   v.   Addl.   Commissioner,   Tribal  <\/p>\n
     Development,-AIR<\/a> 1995 SC 94  as modified in 1997 at  AIR 1997 <\/p>\n
     SC   2581-   “Madhuri   Patil   v.   Addl.   Commissioner,   Tribal  <\/p>\n
     Development,   Thane<\/a>“.   Strong   support   is   being   taken   from <\/p>\n
     direction 4 in 1995 verdict & para 5 of later. Second contention <\/p>\n
     is   about   no   association   of   Research   Officer   with   vigilance   cell <\/p>\n
     and his not accompanying the police officer for spot inquiry & <\/p>\n
     verification. Third ground raised is about  not applying affinity <\/p>\n
     test   legally   &   ignoring   material   provided   by   petitioner   on <\/p>\n
     28\/7\/2003.   Lastly,   it   is   urged   that   allegations   of   malafides <\/p>\n
     leveled are not denied by filing an affidavit  of competent officer <\/p>\n
     and plea about perversity of findings is not traversed.\n<\/p>\n
     4               In   order   to   substantiate   the   first   contention,   Shri <\/p>\n
     Narnaware, learned counsel relied upon assertions in para 16 of <\/p>\n
     writ   petition   to   point   out   Constitution   of   Scrutiny   Committee <\/p>\n
     which   has   adjudicated   the   caste   claim   of   the   petitioner.     The <\/p>\n
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\n                                             5<\/span>
\n     reliance is being placed on direction No. 4 of the Hon’ble Apex <\/p>\n
     Court in the case of  Madhuri Patil vs. Additional Commissioner,  <\/p>\n
     Tribal Development,<\/a> (supra), and view expressed in the case of <\/p>\n
     GM, Indian Bank vs. R. Rani & Anr., reported at (2007) 12 SCC <\/p>\n
     796.  He states that the Additional Secretary or Joint Secretary is <\/p>\n
     not   the   Chairman   of   said   Committee   and   Director   of   Tribal <\/p>\n
     Development   was  also  not   associated  with  it.     He   also   invites <\/p>\n
     attention   to   the   judgment   in   the   case   of  Director   of   Tribal  <\/p>\n
     Welfare, Government of A.P. vs. Laveti Giri,<\/a> reported at (1995) 4 <\/p>\n
     SCC 32 and Baswant vs. State of Maharashtra,<\/a> reported at (2007) <\/p>\n
     14 SCC 800, to urge that said direction in Madhuri Patil-(supra) <\/p>\n
     is   binding  and  mandatory.     To  demonstrate   that   there   was  no <\/p>\n
     Research   Officer   involved   in   Vigilance   investigation,   he   points <\/p>\n
     out that Police Inspector has made enquiry as part of Vigilance <\/p>\n
     Cell on 28.07.2003 and Research Officer has countersigned it on <\/p>\n
     29.07.2003.   The attention is also invited to reply given by the <\/p>\n
     petitioner to vigilance report to show that Research Officer had <\/p>\n
     not accompanied said Police Inspector for field enquiries.   The <\/p>\n
     case   of  Madhuri   Patil   vs.   Additional   Commissioner,   Tribal<\/a>  <\/p>\n
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\n                                               6<\/span>
\n     Development, Thane, (supra), particularly para 5 therein is cited <\/p>\n
     to   buttress   this   contention.     The   learned   counsel   states   that <\/p>\n
     because   of   these   lacunae,   two   documents   relied   upon   by   the <\/p>\n
     petitioner which supported his case have not been looked into by <\/p>\n
     the   Vigilance   Cell   and   the   Committee.     The   first   document <\/p>\n
     according   to   him   is   caste   certificate   of   his   father   issued   on <\/p>\n
     05.10.1977 while the later document is dated 05.01.1927 and of <\/p>\n
     cousin grand father.   The attention is being drawn to para 5 of <\/p>\n
     writ petition.\n<\/p>\n
     5             Affinity   test   has   also   not   been   rightly   applied   and <\/p>\n
     material   supplied   on   behalf   of   the   petitioner   to   vigilance <\/p>\n
     authorities on 28.07.2003 has not been properly evaluated.  The <\/p>\n
     only   consideration   is   the   remark   of   Research   Officer   dated <\/p>\n
     29.07.2003 where he records that traits do not match.  Para 12 <\/p>\n
     of writ petition and judgment of the Hon’ble Apex Court in the <\/p>\n
     case   of  Gayatrilaxmi   B.   Nagpure   vs.   State   of   Maharashtra,<\/a> <\/p>\n
     reported   at   AIR   1996   SC   1338   are   relied   upon.     It   is   further <\/p>\n
     contended that the allegations of malafides are not rebutted and <\/p>\n
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\n                                            7<\/span>
\n     even the contention in writ petition that finding recorded by the <\/p>\n
     Scrutiny   Committee   are   perverse,   has   not   been   denied.\n<\/p>\n
     According   to   him,   the   approach   of   Scrutiny   Committee   in   the <\/p>\n
     matter has been too casual.  The judgment in the case of(wrong <\/p>\n
     citation  ?) reported at  2009  ALL  MR  (SC  Reporter) 193,  para <\/p>\n
     115 is stated to be relied upon for said purpose.\n<\/p>\n
     6<\/span><\/p>\n
                  In   reply,   Shri   Patil,   learned   counsel   for   respondent <\/p>\n
     No.   2   –   Committee   has   invited   attention   to   Government <\/p>\n
     Resolution   dated   14.07.1997   to   urge   that   constitution   of <\/p>\n
     Committee is in accordance with the observations of the Hon’ble <\/p>\n
     Apex   Court   in   Madhuri   Patil’s   case   (supra)   and   Committee   is <\/p>\n
     valid.  He further states that here the impugned order is passed <\/p>\n
     on 16.04.2004 and Act No. 23 of 2001 has come into force on <\/p>\n
     28.10.2001.     The   Notification   constituting  Scrutiny  Committee <\/p>\n
     under Section 6 of said Act is dated 04.06.2003 and it has been <\/p>\n
     slightly   modified   on   12.07.2006.     The   reliance   upon   1999 <\/p>\n
     Government   Resolution   in   this   respect   by   the   petitioner   is <\/p>\n
     misconceived   and   there   is   no   challenge   to   these   later <\/p>\n
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\n                                             8<\/span>
\n     notifications.     Affidavit   dated   03.10.2011   filed   by   Respondent <\/p>\n
     No.   2   –   Committee   is   pressed   into   service   to   urge   that <\/p>\n
     Constitution   of   Committee   is   as   per   judgment   of   the   Hon’ble <\/p>\n
     Apex   Court   in   the   case   of  Madhuri   Patil’s  case.     The   learned <\/p>\n
     counsel has further stated that the petitioner never challenged <\/p>\n
     constitution of Committee and submitted to its jurisdiction and, <\/p>\n
     therefore,   doctrine   of  de   facto  has   to   apply.     The   unreported <\/p>\n
     judgment   of   Division   Bench   of   this   Court   at   Aurangabad <\/p>\n
     delivered on 12.08.2011 in Writ Petition 107 of 2010 is relied <\/p>\n
     upon for this purpose. He has also relied upon AIR 2005 S.C.\n<\/p>\n
     3446 “State Bank’s Staff Union (Madras Circle) v. Union of<\/p>\n
     India<\/a>” to show how validity of an Enactment subsequent to<\/p>\n
     court verdict needs to be examined.\n<\/p>\n
     7            The first judgment in the case of   Madhuri Patil vs.  <\/p>\n
     Additional   Commissioner,   Tribal   Development,   Thane,<\/a>   (supra)   is <\/p>\n
     relied   upon   along   with   later  Madhuri   Patil   vs.   Additional  <\/p>\n
     Commissioner,   Tribal   Development,<\/a>   (supra)   to   urge   that   as <\/p>\n
     required by said judgments of the Hon’ble Apex Court, Research <\/p>\n
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\n                                              9<\/span>
\n     Officer   has   participated   in   vigilance   enquiry.     Reply   filed, <\/p>\n
     particularly para 14 onwards are relied upon for this purpose.\n<\/p>\n
     The judgment in the case of  Prajakta vs. State of Maharashtra,<\/a> <\/p>\n
     2007 (2) Mh. L.J. 760 (paras 14\/ 19) are read out to contend <\/p>\n
     that Research Officer need not go with Vigilance Cell Officer for <\/p>\n
     field enquiry.   The observations in para 14 in this judgment are <\/p>\n
     relied upon to urge that directions issued by the Hon’ble Apex <\/p>\n
     Court are only  “workable principles”.   Rule 10 of Rules framed <\/p>\n
     under Act No. 23 of 2001 along with Rule 12(2) is also relied <\/p>\n
     upon for this purpose.  Judgment in the case of Bharat vs. State <\/p>\n
     of Maharashtra, reported at 2010 (4) Mh. L.J. 458, para 18 is <\/p>\n
     relied on for same purpose along with above referred unreported <\/p>\n
     judgment in Writ Petition No. 107 of 2010 at Aurangabad ( para <\/p>\n
     21).   The judgment in  Sangeeta Balayya Bhurewar vs. State of  <\/p>\n
     Maharashtra, reported at 2003(5) Mh. L.J. 645 is pressed into <\/p>\n
     service   to   show   that   constitution   of   committee   need   not   be <\/p>\n
     strictly   as   per   directions  in   the   judgment   of   the   Hon’ble   Apex <\/p>\n
     Court.\n<\/p>\n
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\n                                            10<\/span><\/p>\n
     8            About   old   document   of   1914,   the   learned   counsel <\/p>\n
     states that person named therein viz.  Ganpat  Desaru  does not <\/p>\n
     figure in family tree disclosed by the petitioner and it was also <\/p>\n
     not made available to Vigilance Cell authorities or Committee.\n<\/p>\n
     The learned counsel states that that document is misleading and <\/p>\n
     has   been   produced   before   this   Court   with   malafide   intention.\n<\/p>\n
     According to him, as demonstrated in reply affidavit in paras 11 <\/p>\n
     &   12,   principles   of   affinity   have   been   correctly   applied.   The <\/p>\n
     judgments in the case of Ramatai Madhukarrao Tapre vs. State of  <\/p>\n
     Maharashtra & Ors.,<\/a> reported at 2002 (Supp. 2) Bom. C.R. 268, <\/p>\n
     (para 10) by learned Single Judge of this Court and of Hon. Apex <\/p>\n
     Court in L. Ushadevi vs. Union of India,<\/a> reported at 2007(14) SCC <\/p>\n
     491 are pressed into service to urge that Act No. 23 of 2001 is <\/p>\n
     complete   code.       The   judgment   in   the   case   of  Vijaya   Deorao  <\/p>\n
     Nandanwar vs. State of Maharashtra,<\/a> reported 2010 (6) Mh. L.J.\n<\/p>\n
     445   is   relied   upon   to   urge   that   only   when   constitution   of <\/p>\n
     committee   is   contrary   to   law   or   then   “working   principles”   in <\/p>\n
     Madhuri   Patil-(supra),   interference   is   warranted   and   not <\/p>\n
     otherwise.     The   material   on   record   is   pressed   into   service   to <\/p>\n
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\n                                           11<\/span>
\n     show that appropriate opportunity has been given to petitioner <\/p>\n
     and principles of natural justice have been followed.  There is no <\/p>\n
     procedural illegality or jurisdictional error.  There is no prayer in <\/p>\n
     writ   petition   to   set   aside   notification   constituting   Scrutiny <\/p>\n
     Committee and by producing wrong documents, effort has been <\/p>\n
     made to mislead this Court.  Wrong statements have been made <\/p>\n
     in   writ   petition   and  on   its  basis,   the  petitioner  has  completed <\/p>\n
     first five years of elected tenure.   The scope of judicial review <\/p>\n
     being   limited,   petition   should   be   dismissed   but   then   serious <\/p>\n
     cognizance of malafides on the part of the petitioner should be <\/p>\n
     taken.\n<\/p>\n
     9            Shri   Kaptan,   learned   counsel   for   respondent   No.   6 <\/p>\n
     has relied upon reply affidavit filed by the Scrutiny Committee to <\/p>\n
     show   that   the   Commissioner   appointed   as   Chairman   of   said <\/p>\n
     Committee is of level of Joint Secretary and hence composition <\/p>\n
     of that Committee is proper.  In Writ Petition, challenge is to non <\/p>\n
     existent resolution or notification &  in absence of proper prayer, <\/p>\n
     it must fail.  He contends that direction No. 4 in the judgment in <\/p>\n
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\n                                             12<\/span>
\n     the case of   Madhuri Patil  (supra) is fully complied with here.\n<\/p>\n
     The judgment of Division Bench of this Court in the case of Rohit  <\/p>\n
     Rathod  (supra) is pending in Special Leave Petition before the <\/p>\n
     Hon’ble Apex Court and has been stayed.   The judgment in the <\/p>\n
     case   of  Sudhakar   Vithal   Kumbhare   vs.   State   of   Maharashtra,<\/a> <\/p>\n
     reported at 2004 (9) SCC 481, is sought to be distinguished by <\/p>\n
     pointing   out   that   there   caste   claim   was   held   invalid   without <\/p>\n
     referring   the   matter   to   Caste   Scrutiny   Committee   and   thus <\/p>\n
     Article   141   was   violated.     Here,   the   invalidation   is   after   due <\/p>\n
     opportunity to petitioner & in full compliance with law on the <\/p>\n
     point.  In the alternative and without prejudice, he states that 3 <\/p>\n
     members out of total 5 members constitute quorum and as in <\/p>\n
     present   proceedings,   quorum   always   existed,   all   meetings   and <\/p>\n
     adjudication by the Scrutiny Committee is valid.  Hence, even if <\/p>\n
     the   Commissioner   is   not   held   to   be   competent   as   Chairman <\/p>\n
     Member, still the proceedings therein are not vitiated.  Support is <\/p>\n
     being   taken   from   the   judgment   in   the   case   of  The   Punjab  <\/p>\n
     University, Chandigarh vs. Vijay Singh Lamba & Ors,<\/a> reported at <\/p>\n
     1976 (3) SCC 344.\n<\/p>\n
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\n                                             13<\/span><\/p>\n
     10            The   learned   counsel   further   states   that   when   the <\/p>\n
     Hon’ble  Apex Court considered the controversy either in 1994 or <\/p>\n
     then   in   1997,   there   was   no   Enactment   framed   by   competent <\/p>\n
     Legislature   occupying   the   field.     The   judgment   of   the   Hon’ble <\/p>\n
     Apex Court in the case of Rajeswar Prasad Misra vs. The State of  <\/p>\n
     West Bengal & Anr.,<\/a> reported at AIR 1965 SC 1887 is relied upon <\/p>\n
     to show that the Hon’ble Apex Court or then no Court enacts a <\/p>\n
     law.  To point out that even adjudication by the Court of Law can <\/p>\n
     be nullified by Legislature by enacting a competent law, he relies <\/p>\n
                                                       Saksena   vs.   State  of
\n     upon   the   judgment   in   the   case   of  I.N.\n<\/p>\n
     Madhya   Pradesh,   reported   at   AIR   1976   SC   2250   (1).     He <\/p>\n
     contends that though direction No. 4 in the case of Madhuri Patil <\/p>\n
     (supra)   is   not   completely   diluted   by   Act   No.   23   of   2001,   the <\/p>\n
     Notification issued under Section 6 of said Act  is consistent and <\/p>\n
     in   consonance   with   direction   No.   4.     Lastly,   Division   Bench <\/p>\n
     judgment   in   the   case   of  Deorao   G.   Umredkar   vs.   State   of  <\/p>\n
     Maharashtra,<\/a> reported at 2007 (5) BCR 629 (para 30) is relied <\/p>\n
     upon to show that role of Research Officer starts after vigilance <\/p>\n
     investigation   and   hence   he   is   not   supposed   to   visit   the   spot <\/p>\n
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\n                                             14<\/span>
\n     during field enquiry.\n<\/p>\n
     11            Shri Narnaware, learned counsel, in reply argument <\/p>\n
     has contended that there is no answer by any of the respondents <\/p>\n
     as   to   why   officer   higher   in   rank   than   Director   could   not   be <\/p>\n
     appointed as the Chairman.  He repeats that directions No. 4 in <\/p>\n
     first   and  5   in   later  Madhuri  Patil  case   are   mandatory  and  the <\/p>\n
     same are never modified nor diluted.  The judgments in the case <\/p>\n
     of AIR 1997 S.C. 2046 “Director of Tribal Welfare v. Laveti Giri<\/a>“D\/-\n<\/p>\n
     10 -3 -1997 &  GM, Indian Bank vs. R. Rani & Anr . , (supra) are <\/p>\n
     relied   upon   to   contend   that   the   State   Legislature   had   not <\/p>\n
     obtained   any   permission   from   the   Hon’ble   Apex   Court   before <\/p>\n
     enacting Act No. 23 of 2001.  The Government Resolution dated <\/p>\n
     14.07.1997 after second judgment in the case of  Madhuri Patil, <\/p>\n
     law stated in the case of  Rohit Rathod vs. State of Maharashtra,<\/a>  <\/p>\n
     reported  at 2010 (2) Mah. L.J. 384, and judgment of the Hon’ble <\/p>\n
     Apex Court in the case of Sudhakar Vithal Kumbhare vs. State of  <\/p>\n
     Maharashtra & Ors.,<\/a> reported at (2004) 9 SCC 481 are pressed <\/p>\n
     into   service   for   this   purpose.   The   judgment   in   the   case   of <\/p>\n
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\n                                            15<\/span>
\n     “Central   Inland   Water   Transport   Corporation   Ltd.   v.   Brojo   Nath  <\/p>\n
     Ganguly<\/a>” reported at AIR 1986 SC 1571 is pressed into service to <\/p>\n
     urge that Section 6 confers upon the State Government a wide <\/p>\n
     and   un-canalized   power.     Therefore,   challenge   to   notification <\/p>\n
     issued thereunder is not necessary.  The judgment in the case of <\/p>\n
     Vijay Kisan Karanjkar vs. State of Maharashtra,<\/a> reported at 2004 <\/p>\n
     (3) Mh. L.J. 49 and unreported judgments in  Writ Petition No.  <\/p>\n
     8413   of   2008  (paras   6   &   7),  Writ   Petition   No.   2136   of   2011 <\/p>\n
     (paras 6 & 8) are relied upon for this purpose.   State of Haryana  <\/p>\n
     vs. State of Haryana, reported at  (1993) 3 SCC 114 (paras 10 & <\/p>\n
     12) is pressed into service to show how principles of law need to <\/p>\n
     be applied & consistent approach is of paramount  importance.\n<\/p>\n
     12           Unreported judgment in Writ Petition No. 107 of 2010 <\/p>\n
     (para 21) and judgment in the case of   Ashwini Anil Chavan vs.  <\/p>\n
     State of Maharashtra,<\/a> reported at 2006 (4) Mh. L.J. 415 (para 3) <\/p>\n
     are cited to   point out how the Research Officer is expected to <\/p>\n
     accompany vigilance cell authorities.  The judgment delivered at <\/p>\n
     Nagpur in the case of  Bharat vs. State of Maharashtra, reported <\/p>\n
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\n                                             16<\/span>
\n     at   2010   (4)   Mh.   L.J.   458   (para   18)   is   relied   upon   for   said <\/p>\n
     purpose.         The   Government   policy   on   this   in   Circular   dated <\/p>\n
     06.09.2000 , particularly clause 5, thereof is relied upon to point <\/p>\n
     out the role to be played by a Research Officer in field enquiry.\n<\/p>\n
     Learned   Counsel   has   further   urged   that   here,   the   affidavit   of <\/p>\n
     Research Officer filed on 03.10.2011 is not by that Officer who <\/p>\n
     was   associated   with   present   vigilance   enquiry   and   hence   that <\/p>\n
     affidavit cannot be accepted.  The judgment in the case of  “C. S.\n<\/p>\n
     Rowjee v. State of A.P.” reported at AIR 1964 SC 962 (para 22) is <\/p>\n
     cited to show how the allegations of malafides need to be dealt <\/p>\n
     with   by   respondent   &   by   Courts.     The   learned   counsel   has <\/p>\n
     concluded   his   reply   by   contending   that   non-inclusion   of <\/p>\n
     Additional or Joint Secretary from Committee is in fact Contempt <\/p>\n
     of Court.\n<\/p>\n
     13            It will be appropriate to first deal with the issue of <\/p>\n
     composition   of   Scrutiny   Committee.     The   challenge   is   based <\/p>\n
     upon directions of the Hon’ble Apex Court in the case of Madhuri  <\/p>\n
     Patil   vs.   Additional   Commissioner,   Tribal   Development,<\/a>   (supra), <\/p>\n
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\n                                             17<\/span>
\n     and   its   later   judgment   also   in   the   case   of  Madhuri   Patil   vs.  <\/p>\n
     Additional Commissioner, Tribal Development, Thane,<\/a> reported at <\/p>\n
     AIR 1997 SC 2581 (supra).  Direction No. 4 as contained in para <\/p>\n
     12 in first judgment requires State Governments to constitute a <\/p>\n
     Committee   of   three   officers   and   first   one   amongst   them   is <\/p>\n
     Additional or Joint Secretary or any officer higher in rank of the <\/p>\n
     Director of concerned departments.  The second one is Director, <\/p>\n
     Social   Welfare,   Tribal   Welfare,   Backward   class   welfare   etc. <\/p>\n
     Therefore, first member has to be of a rank above Director.   In <\/p>\n
     later   judgment,   the   Hon’ble   Apex   Court   has   not   touched   this <\/p>\n
     direction and it is  retained  as it is.    The later judgment is on <\/p>\n
     application moved by State Government for some modifications <\/p>\n
     in   earlier   directions.     On   14.07.1997   mentioning   both   these <\/p>\n
     judgments,   State   Government   has   issued   a   resolution   and   for <\/p>\n
     Nagpur Area, officer of the rank of the Additional Secretary or <\/p>\n
     Joint   Secretary\/   Director,   Tribal   Development   and   Research <\/p>\n
     Institute, Pune, is nominated as Member.  The Assistant Director, <\/p>\n
     Tribal   Development,   Pune   and   Assistant   Director,   Tribal <\/p>\n
     Development,   Amravati   are   its   two   members.     The   Deputy <\/p>\n
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\n                                           18<\/span>
\n     Director   (Research)   is   its   Member   Secretary.     Two   Research <\/p>\n
     Officers are also its members.  After coming into force of Act No. <\/p>\n
     23 of 2001 vide Notification dated 04.06.2003, the Committee <\/p>\n
     has been constituted in exercise of powers under S.6 thereof and <\/p>\n
     this  notification  does  not  refer to earlier resolution  mentioned <\/p>\n
     above,   issued   in   pursuance   of   directions   of   the   Hon’ble   Apex <\/p>\n
     Court.  This resolution with its modification is already mentioned <\/p>\n
     by us above.   The officer of the rank of Additional Secretary or <\/p>\n
     Joint Secretary expressly does not figure in it.  The Chairman of <\/p>\n
     the   Committee   is   Commissioner\/   Director   for   Tribal   Research <\/p>\n
     and   Training   Institute,   Pune.     The   resolution   has   undergone <\/p>\n
     slight change on 12.07.2006.  The petitioner has not challenged <\/p>\n
     any of these resolutions or notifications.\n<\/p>\n
     14           Shri   Kaptan,   learned   counsel,   had   therefore, <\/p>\n
     contended   that   in   the   absence   of   challenge   to   any   particular <\/p>\n
     notification   issued   under   Section   6,   the   arguments   of   the <\/p>\n
     petitioner   are   only   of   academic   importance.     However,   in   the <\/p>\n
     case of  Vijay Kisan Karanjkar vs. State of Maharashtra,<\/a> (supra), <\/p>\n
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\n                                             19<\/span>
\n     Division Bench of this Court has considered the judgment of the <\/p>\n
     Hon’ble Apex Court in the case of  Madhuri Patil-(supra) and in <\/p>\n
     para 15 observed that it was not open to State Government to <\/p>\n
     contend  that   the   constitution   of   committee   as   directed   by   the <\/p>\n
     Hon’ble   Apex   Court   was   not   compulsory.     This   judgment   of <\/p>\n
     Division Bench of this Court is delivered on 27.06.2003 i.e. after <\/p>\n
     notification dated 04.06.2003.  However, it does not appear that <\/p>\n
     this notification dated 04.06.2003 was being considered there, as <\/p>\n
     challenge was to adjudication by the Scrutiny Committee dated <\/p>\n
     12.05.2003.     Thus,  that   Committee   was  not   constituted  under <\/p>\n
     Act   No.   23   of   2011.     This   Court   also   found   that   Government <\/p>\n
     itself had prescribed quorum of two members and hearing was <\/p>\n
     also accorded only by two members but the order was passed by <\/p>\n
     three members and signed by the committee consisting of three <\/p>\n
     members.  The Government had then contend that third member <\/p>\n
     was   necessary   only   in   case   of   verification   of   caste   claims   of <\/p>\n
     Scheduled Castes or Scheduled Tribes candidate.  This Court  did <\/p>\n
     not  accept  that  stand.     The  Division   Bench in  the  process  has <\/p>\n
     noted   contention   that   Act   No.   23   of   2001   did   not   provide <\/p>\n
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\n                                              20<\/span>
\n     minimum number of members on committee and the petitioner <\/p>\n
     had not challenged the resolution which prescribed quorum or <\/p>\n
     constitution   of   committee.     The   Division   Bench   has,   however, <\/p>\n
     nowhere   specifically   stated   that   it   was   not   necessary   for   the <\/p>\n
     petitioner to challenge said resolution.  However, in view of this <\/p>\n
     judgment, we have proceeded further to consider the challenge <\/p>\n
     even on merits. We are required to look at it again in the course <\/p>\n
     of discussion.\n<\/p>\n
     15            The Scrutiny Committee has filed an affidavit of reply <\/p>\n
     on   03.10.2011   during   hearing   and   in   it,   it   is   stated   that   the <\/p>\n
     Commissioner\/ Director of Tribal Research and Training, Pune, is <\/p>\n
     Chairman of the Committee.  The said officer is I.A.S. and of the <\/p>\n
     rank of Joint Secretary.   Similarly, the Additional Commissioner <\/p>\n
     was the person of the rank of the Director of Tribal Welfare.  It is <\/p>\n
     also pointed out that status of the Commissioner\/ Director for <\/p>\n
     Tribal   Research   and   Training,   Pune   and   of   Additional <\/p>\n
     Commissioner   has   nowhere   been   questioned   in   the   petition.\n<\/p>\n
     These   assertions   on   oath   have   not   been   traversed   by   the <\/p>\n
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\n                                            21<\/span>
\n     petitioner thereafter though hearing continued till 10th  October <\/p>\n
     2011.        In  GM, Indian Bank vs. R. Rani & Anr. (supra), the <\/p>\n
     Hon’ble Apex Court has found that directions in  Madhuri Patil <\/p>\n
     judgment would have binding force of law.  The observations are <\/p>\n
     made while considering the challenge to judgment of the Madras <\/p>\n
     High Court where it appears that there was no Enactment like <\/p>\n
     Act No. 23 of 2001.    In this judgment, the Hon’ble Apex Court <\/p>\n
     has pointed out that its directions have binding force of law after <\/p>\n
     noticing earlier precedents.  Consideration in para 7 shows that <\/p>\n
     reiteration  of  principles  laid down  in  Madhuri Patil (supra) in <\/p>\n
     subsequent   judgment   in   the   case   of  Director   of   Tribal   Welfare, <\/p>\n
     Government of Andhra Pradesh vs. Laveti Giri,<\/a> (supra), requiring <\/p>\n
     Government of India to examine the issue in greater details and <\/p>\n
     to   bring   up   uniform   legislation   are   taken   note.     Thereafter <\/p>\n
     judgment of the Hon’ble Apex Court itself in the case of Baswant  <\/p>\n
     vs. State of Maharashtra & Ors.,<\/a> (supra), arising out of State of <\/p>\n
     Maharashtra is also noted and the Hon’ble Apex Court has found <\/p>\n
     that   Constitution   of   Committee   there,   was   not   in   accordance <\/p>\n
     with   decision   rendered   by   it   in  Madhuri   Patil-(supra).     The <\/p>\n
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\n                                             22<\/span>
\n     judgment of larger Bench of the Hon’ble Apex Court in the case <\/p>\n
     of  Sudhakar Vithal Kumbhare vs. State of Maharashtra,<\/a> reported <\/p>\n
     at (2004) 9 SCC 481, is then looked into with mention that there <\/p>\n
     caste   claim   was   invalidated   without   referring   the   matter   to <\/p>\n
     appropriate   committee.     The   Hon’ble   Apex   Court,   therefore, <\/p>\n
     noted that the directions given in  Madhuri Patil  (supra) cannot <\/p>\n
     be   viewed   simply   as   guidelines   and   said   law   reiterated   on <\/p>\n
     number of occasions was found approved even by three judge <\/p>\n
     bench of the Hon’ble Apex Court.  It is to be noted that Baswant  <\/p>\n
     vs.   State   of   Maharashtra   &   Ors.,<\/a>   (supra),   is   the   matter   which <\/p>\n
     arises out of SLP(C) filed in the year 1998 and hence it is prior to <\/p>\n
     coming into force of Act No. 23 of 2001.  The other judgment in <\/p>\n
     the case of  Sudhakar Vithal Kumbhare vs. State of Maharashtra,<\/a> <\/p>\n
     (supra)   which   goes   to   the   Hon’ble   Apex   Court   from   State   of <\/p>\n
     Maharashtra only, also shows that there claim was not referred <\/p>\n
     to Scrutiny Committee at all.  The later judgment of the Hon’ble <\/p>\n
     Apex Court in  Director of Tribal Welfare vs. Laveti Giri,<\/a> (supra) <\/p>\n
     finds   mention   in   para   8   of   this   judgment.     The   Hon’ble   Apex <\/p>\n
     Court in this later judgment  has approved draft rules submitted <\/p>\n
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\n                                             23<\/span>
\n     to it by State of Andhra Pradesh.  The draft rules were prepared <\/p>\n
     in pursuance of a State Act already in force in that State prior to <\/p>\n
     Madhuri Patil-(supra).   We have to make reference to this 1997 <\/p>\n
     judgment   in  Laveti   Giri   ,  little   later.     The   Hon’ble   Apex   Court <\/p>\n
     approved   those   draft   rules   and  constitution   of  the   State   Level <\/p>\n
     Committee   and  District   Level   Committees   thereunder.     In   said <\/p>\n
     para 8, the Hon’ble Apex Court has pointed out that directions <\/p>\n
     issued in Madhuri Patil-(supra), have not been modified. All this <\/p>\n
     holds   good   where   the   field   of   caste   claim   verification   is   not <\/p>\n
     occupied by a competent legislation.\n<\/p>\n
     16            In the case of Sangeeta Balayya Bhurewar vs. State of  <\/p>\n
     Maharashtra, reported at 2003 (5) Mh. L.J. 645, Division Bench <\/p>\n
     of   this   Court   has   considered   the   law   on   the   point   and   has <\/p>\n
     observed  at  the  end  of  para 16  that  the  learned  Single   Judge <\/p>\n
     who found non compliance with paragraph No. 5 in the case of <\/p>\n
     Madhuri   Patil-(supra)  not   sufficient   to   vitiate   the   findings <\/p>\n
     recorded by Committee, correct. In the said judgment, learned <\/p>\n
     Judge follows view of another learned Single Judge in the case <\/p>\n
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\n                                            24<\/span>
\n     of  Kum.   Chhaya   Namdeorao   Binekar   vs.   State   of   Maharashtra,<\/a> <\/p>\n
     reported at 2003(3) Mh.L.J. 339.   In the said judgment in para <\/p>\n
     26,   the   learned   Single   Judge   has   held   that   manner   of <\/p>\n
     investigation need not be strictly in accordance with the words of <\/p>\n
     the   Hon’ble   Supreme   Court.     In   the   case   of  Vijaya   Deorao <\/p>\n
     Nandanwar   vs.   State   of   Maharashtra,<\/a>   reported   at   2010   (6) <\/p>\n
     Mh.L.J.   445,   Division   Bench   of   this   Court   has   considered   the <\/p>\n
     question of Constitution of Scrutiny Committee and found that <\/p>\n
     when Constitution of Scrutiny Committee is on the basis of first <\/p>\n
     judgment   of   the   Hon’ble   Apex   Court   in  Madhuri   Patil, <\/p>\n
     qualification and experience of personnel in the rank and cadre <\/p>\n
     as on date of said judgment have to be construed as adequate as <\/p>\n
     saved by necessary implication.   In para 28, said Division Bench <\/p>\n
     has observed that it is open to State Government to legislate as <\/p>\n
     regards   qualifications   of   members   of   Scrutiny   Committee   in <\/p>\n
     conformity with  Madhuri Patil’s  case.   The Division Bench also <\/p>\n
     noted that said process was going on.  If the Committee is found <\/p>\n
     constituted in accordance with law, Division Bench found that it <\/p>\n
     was   not   open   to   anybody   to   challenge   its   constitution   on   the <\/p>\n
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\n                                            25<\/span>
\n     ground   of   lack   of   qualification   so   long   as   its   constitution <\/p>\n
     conforms to the dictum in the Madhuri Patil’s case.\n<\/p>\n
     17           This   brings   us   to   consideration   of   Division   Bench <\/p>\n
     judgment in the case of  Rohit Rathod vs. State of Maharashtra,<\/a> <\/p>\n
     reported at 2010 (2) Mh. L.J. 384.  There the order of Scrutiny <\/p>\n
     Committee   dated   30.04.2009   invalidating   his   caste   claim   as <\/p>\n
     belonging to Vimukta Jati was assailed.  The Scrutiny Committee <\/p>\n
     as constituted under Act No. 23 of 2001 as per Notification dated <\/p>\n
     12.02.2009   had   considered   that   issue   of   invalidity.     The   said <\/p>\n
     Committee consisted of Additional Collector, Nagpur, who acted <\/p>\n
     as   Chairman,   Research   Officer   and   Member   Secretary   and <\/p>\n
     Member   of   Divisional   Social  Welfare   Officer.     The   invalidation <\/p>\n
     was   questioned   on   the   ground   that   constitution   of   Committee <\/p>\n
     was not in accordance with the judgment of the Hon’ble Apex <\/p>\n
     Court in the case of  Madhuri Patil (supra).  The Division Bench <\/p>\n
     has   noticed   that   constitution   of   committee   which   adjudicated <\/p>\n
     caste claim was not   as per notification dated 12.2.2009 issued <\/p>\n
     under   S.   6   of   Act   no.   23   of   2001.   As   per   this   12.2.2009 <\/p>\n
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\n                                              26<\/span>
\n     notification,   the Committee for Social Welfare, Cultural Affairs <\/p>\n
     and   Sports   Department,   was   to   comprise   of   Additional <\/p>\n
     Commissioner (Revenue) as Chairman, Divisional Social Welfare <\/p>\n
     Officer   as   Member   and   Research   Officer   as   Welfare   Officer <\/p>\n
     Member.     The   Research   Officer   was   to   function   as   Member <\/p>\n
     Secretary.   The learned Assistant Government Pleader had tried <\/p>\n
     to justify the Constitution of Committee by placing reliance upon <\/p>\n
     Section   6(1)   of   Act   No.   23   of   2001.     He   contended   that <\/p>\n
     enactment   did   not   require   Government   to   constitute   a <\/p>\n
     Committee   of   Officers   of   particular   status   or   rank.     Rule   9   of <\/p>\n
     2003   Rules   framed   under   the   Act   no.   23   of   2001   were   also <\/p>\n
     pressed   into   service   to   support   the   contention   that   Additional <\/p>\n
     Commissioner (Revenue) was not required as a Chairman. The <\/p>\n
     Division Bench of this Court has found that neither said Section <\/p>\n
     6 nor  Rule 9 stipulated who should be appointed on Committee.\n<\/p>\n
     In   para   9   of   the   judgment,   it   has   been   mentioned   that   said <\/p>\n
     provisions   confer   un-canalized   discretionary   powers   on   State <\/p>\n
     Government and it would, therefore, be unconstitutional.   Said <\/p>\n
     Division Bench has drawn support for this from the judgment of <\/p>\n
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\n                                             27<\/span>
\n     the   Hon’ble   Apex   Court   in   the   case   of  Central   Inland   Water  <\/p>\n
     Transport Corporation Limited & Anr. vs. Brajo Nath Ganguly &  <\/p>\n
     Anr., reported at AIR 1986 SC 1571. But as there was no prayer <\/p>\n
     for   declaring     said   Enactment   (23   of   2001)     unconstitutional, <\/p>\n
     Division   Bench   has   left   that   issue   open.     Because   of   Division <\/p>\n
     Bench   judgment   in   the   case   of  Vijay   Kisan   vs.   State   of  <\/p>\n
     Maharashtra,<\/a>  (supra),   it   found   that   Direction   No.   4   is   clearly <\/p>\n
     mandatory   and   the   Additional   Collector   could   not   have <\/p>\n
     functioned   as   Chairman.     It,   therefore,   has   set   aside   that <\/p>\n
     adjudication of caste claim and directed fresh consideration by a <\/p>\n
     duly   constituted   Scrutiny   Committee.     The   respective   counsel <\/p>\n
     have also pointed out to us that this judgment is stayed by the <\/p>\n
     Hon’ble Apex Court presently.  We also note that earlier view of <\/p>\n
     Division Bench of this Court in  Dattatraya Rambhau Thorat vs.  <\/p>\n
     State of Maharashtra<\/a>  -2002(4) All.M.R. 807 negating challenge <\/p>\n
     to constitutional validity of Act no. 23 of 2001 has observed:-\n<\/p>\n
            “40.          Under   section   6   of   the   Act   provision   has   been
\n            made for constituting, by notification in the official gazette,  <\/p>\n
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\n                                       28<\/span>
\n     one or  more  scrutiny  committee(s)  for verification of  caste
\n     certificates and it is further provided that the said committee  <\/p>\n
     shall   follow   such   procedure   for   verification   of   the   caste  <\/p>\n
     certificate and adhere to the time limit for verification and
\n     grant of validity certificate, as prescribed. The composition of
\n     the committee viz. the number of members etc., has not been  <\/p>\n
     spelt   out   and,   therefore,   the   natural   presumption   that   is
\n     required   to   be   drawn   is   that   the   composition   of   the  <\/p>\n
     committee   shall   be   as   per   the   directives   laid   down   by   the
\n     Apex   Court   in   Kumari   Madhuri   Patil’s   case   (supra).   The  <\/p>\n
     provisions of section 6 of the Act are clear on the composition  <\/p>\n
     of the committee and the contentions that they are contrary
\n     to the directives issued by the Supreme Court are without any
\n     substance.”  This judgment is looked into by Full Bench of <\/p>\n
     this Court in Sujit V. Patil vs. State Of Maharashtra–<\/a>(2004)3 <\/p>\n
     Mah.   L.J.   1109.   Hon.   Apex   Court   has   while   considering
\n     overriding   effect   of   Act   no.   23   of   2001   on   government
\n     resolution dated 15.6.1995 in case of State of Maharashtra <\/p>\n
     vs. Sanjay Nimje,<\/a> noted that a different Scrutiny Committee
\n     constituted under S. 6 of said Act has started functioning in
\n     Maharashtra   when   it   observes:–  “11.  The   Caste   Scrutiny  <\/p>\n
     Committee was initially constituted in terms of the decision
\n     of this Court in Kumari Madhuri Patil & Anr. Vs. Additional
\n     Commissioner,   Tribal   Development   &   Ors.   1994   (6)   SCC\n<\/p>\n
     241). The Committee which was now constituted in terms of  <\/p>\n
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\n                                            29<\/span>
\n           the 2000 Act issued a notice upon the respondent.  He was
\n           given   an   opportunity   of   hearing.   The   principles   of   natural  <\/p>\n
           justice   had,   thus,   been   complied   with.   The   Caste   Scrutiny  <\/p>\n
           Committee opined that the respondent failed to prove   — …\n<\/p>\n
           —.”  This shows that  this Court in Rohit Rathod vs. State of
\n           Maharashtra<\/a>(supra)   was   not   required   to   &   has   not   laid <\/p>\n
           down any law on the aspect raised before us.\n<\/p>\n
     18           The judgment of Division Bench of this Court in the <\/p>\n
     case of Vijay Kisan vs. State of Maharashtra,<\/a> (supra) reveals that <\/p>\n
     there   the   order   of   Scrutiny   Committee   was   dated   12.05.2003 <\/p>\n
     and the Committee consisted of three members but then hearing <\/p>\n
     was afforded by two members only and the impugned order was <\/p>\n
     signed   by   three   members.   The   petitioner,   therefore,   had <\/p>\n
     contended that such order was unsustainable.  The learned AGP <\/p>\n
     supported  that   order   and  pointed  out   that   on   two  days   when <\/p>\n
     hearing   took   place,   it   was   before   two   members   of   Scrutiny <\/p>\n
     Committee   while   the   impugned   order   was   issued   by   all   three <\/p>\n
     members.  The stand was, the proceedings could not have been <\/p>\n
     held   as   vitiated   because   of   Government   Resolution   dated <\/p>\n
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\n                                             30<\/span>
\n     25.01.2000.  The said Government Resolution dealt with quorum <\/p>\n
     and prescribed that at each hearing, there should be quorum of <\/p>\n
     two members but then the validity certificate should be issued <\/p>\n
     under the signatures of all three members and needed seal of <\/p>\n
     office of the Committee.   This controversy is examined and in <\/p>\n
     para  15,   the  Division   Bench has  found that   State  Government <\/p>\n
     could not have contended that it was not obliged to constitute a <\/p>\n
     Committee   as   per  judgment   of  the   Hon’ble   Apex   Court   in   the <\/p>\n
     case   of  Madhuri   Patil-(supra).   It   also   noted   that   validity   of <\/p>\n
     Government Resolution prescribing quorum of two members was <\/p>\n
     not   assailed   before   it   and   hearing   extended   by   two   members, <\/p>\n
     therefore,   could   not   have   been   objected   to.     In   para   18,   the <\/p>\n
     contention   that   in   facts   of   the   matter,   participation   by   third <\/p>\n
     member was not necessary as caste claim was of OBC  candidate, <\/p>\n
     has   been   taken     note   of.     The   conclusion   reached   in   para   19 <\/p>\n
     shows that there were no separate and independent committees <\/p>\n
     and hence this contention was   held only academic.   It is held <\/p>\n
     that   the   Hon’ble   Apex   Court   had   directed   constitution   of <\/p>\n
     Committee   of   three   members   and  that   direction   needed   to  be <\/p>\n
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\n                                            31<\/span>
\n     complied   with.     All   three   members,   therefore,   ought   to   have <\/p>\n
     accorded   hearing   to   the   petitioner.   Because   of   this   reason, <\/p>\n
     challenge   to   Government   Resolution   prescribing   quorum   was <\/p>\n
     found immaterial and the impugned order was set aside.   It is, <\/p>\n
     therefore,   obvious  that  the  issue  of Constitution  of  Committee <\/p>\n
     under Act No. 23 of 2001 or then statutory rules dealing with <\/p>\n
     quorum during such proceedings of Scrutiny Committee did not <\/p>\n
     fall for consideration before the said Division Bench.\n<\/p>\n
     19           Thus  Rohit   Rathod   vs.   State   of   Maharashtra,<\/a>(supra) <\/p>\n
     does not hold  that S. 6 of the Act no. 23 of 2001 is bad or the <\/p>\n
     committee   constituted   thereunder   is   illegal.   It   only   finds <\/p>\n
     functioning   of   Additional   Collector   as   chairman   contrary   to <\/p>\n
     notification   dated   12.2.2009   issued   by   State   Government   by <\/p>\n
     using its powers under said S. 6. Before us, the issue is of conflict <\/p>\n
     between the statutory notification and committee as envisaged <\/p>\n
     by Hon. Apex Court in absence of any statute. The need to have <\/p>\n
     uniform law on the subject is already noted by Hon. Apex Court.\n<\/p>\n
     At   this   stage,   we   only   wish   to   indicate   that   the   nature   of <\/p>\n
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\n                                             32<\/span>
\n     directions   issued   as   “workable   principles”   or   “guidelines”   and <\/p>\n
     two   judgments   of   Hon.   Apex   Court   with   reference   to   State <\/p>\n
     Enactments were not pointed out to this Court in  Rohit Rathod  <\/p>\n
     vs.   State   of   Maharashtra,<\/a>(supra).   As   the   contention   was   not <\/p>\n
     specifically raised there, the relevant arguments having bearing <\/p>\n
     on the matter were also not advanced. We will like to revert back <\/p>\n
     to this aspect little later when we consider judgments of Hon. <\/p>\n
     Apex Court  in matter Laveti Giri  (1997) &  L. Ushadevi vs. Union  <\/p>\n
     of India,<\/a> (supra).\n<\/p>\n
     20            This brings us to consideration of the other argument <\/p>\n
     about   not   applying   affinity   test   properly   or   then   non <\/p>\n
     consideration of two documents submitted by the petitioner.  The <\/p>\n
     service   of   vigilance   cell   report   upon   the   petitioner   is   not   in <\/p>\n
     dispute.     The   petitioner  has  also  replied   to  said   reports.     The <\/p>\n
     pleadings before us show contention that said enquiry cannot be <\/p>\n
     said to be proper enquiry as it did not go into requisite details <\/p>\n
     and   no   person   related   to   the   petitioner   was   examined.     The <\/p>\n
     recording of statement of the petitioner is not sufficient and his <\/p>\n
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\n                                             33<\/span>
\n     father and uncle were not examined.  The Research Officer was <\/p>\n
     not associated as required by paragraph No. 5 in later judgment <\/p>\n
     in the matter of Madhuri Patil-(supra).  The documents and reply <\/p>\n
     submitted by the petitioner have not been properly considered.\n<\/p>\n
     21            The   first   document   is   issued   by   the   Executive <\/p>\n
     Magistrate,   Bhandara   on   05.10.1977   to   the   father   of   the <\/p>\n
     petitioner, showing that he belongs to Halba community which is <\/p>\n
     recognized as Scheduled Tribe.  It also mentions that father and <\/p>\n
     his family ordinarily resided in Bhandara district.   The reply of <\/p>\n
     the petitioner to Police Vigilance Cell is dated 28.05.2004 and <\/p>\n
     this reply does not make any reference to said document.   It is <\/p>\n
     also   important   to   note   that   the   order   of   Scrutiny   Committee <\/p>\n
     nowhere mentions this document & it states on oath about its <\/p>\n
     non-supply   on   record.     In   para   3   of   writ   petition,   after <\/p>\n
     mentioning the fact of his election, the petitioner has stated that <\/p>\n
     he   has   placed   on   record   caste   certificate   of   his   father   dated <\/p>\n
     05.10.1977.     There   is   thus   no   specific   averment   that   this <\/p>\n
     document was supplied to Scrutiny Committee.  The documents <\/p>\n
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\n                                             34<\/span>
\n     supplied   to   Scrutiny   Committee   show   photostat   copy   of   birth <\/p>\n
     certificate of a male child born to Yadavrao Somaji (father of the <\/p>\n
     petitioner) on 26.02.1961, photostat copy of caste certificate of <\/p>\n
     the   petitioner’s   brother   issued   by   the   Executive   Magistrate, <\/p>\n
     Bhandara, on 16.07.1974 and also birth certificate of male child <\/p>\n
     born to grand father Soma Jagat on 22.11.1937.  The other four <\/p>\n
     documents are also mentioned.   In this situation, it is apparent <\/p>\n
     that   non   consideration   of   this   document   dated   05.10.1977   by <\/p>\n
     itself   is   not   sufficient   to   invalidate   the   consideration   by   the <\/p>\n
     Scrutiny   Committee.     Moreover,   this   document   does   not <\/p>\n
     anywhere show that the Executive Magistrate had verified any <\/p>\n
     other   document   or   material   before   issuing   said   certificate   on <\/p>\n
     05.10.1977   to   Yadavrao.   It   appears   that   said   document   was <\/p>\n
     never supplied by petitioner. The other document not looked into <\/p>\n
     by the Scrutiny Committee is a School Leaving Certificate which <\/p>\n
     has   been   annexed   with   writ   petition   as   Annexure   5.     It   is <\/p>\n
     undated   and   name   of   student   mentioned   therein   is   Ganpat <\/p>\n
     Dasru.     His   caste   is   shown   as   Halba   with   date   of   birth   as <\/p>\n
     30.05.1914.  In June 1927, said Ganpat had taken admission in <\/p>\n
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\n                                           35<\/span>
\n     III   Standard   and   left   School   on   11.04.1929   after   passing   IV <\/p>\n
     Standard   examination.     The   Scrutiny   Committee   has   in   reply <\/p>\n
     affidavit stated that said document was not supplied to Scrutiny <\/p>\n
     Committee at any point of time.  Though during oral arguments, <\/p>\n
     the learned counsel has stated that Ganpat Dasru is cousin grand <\/p>\n
     father, in para 5 of the petition, he has been mentioned as grand <\/p>\n
     father and pleading   is “petitioner has submitted”. This plea of <\/p>\n
     submission is thus too vague as it does not clarify whether said <\/p>\n
     document is being annexed with writ petition for first time   or <\/p>\n
     then was also filed before the Scrutiny committee.   The family <\/p>\n
     tree is provided by the petitioner’s father himself during vigilance <\/p>\n
     enquiry   and   not   in   dispute,   does   not   mention   name   of   said <\/p>\n
     Ganpat Dasru as relative any where.  The perusal of statement of <\/p>\n
     father of the petitioner recorded by Vigilance Cell authorities on <\/p>\n
     16.7.2003   shows   that   family   of   the   petitioner   shifted   to <\/p>\n
     Bhandara sometimes in the year 1930.   Looking to the age of <\/p>\n
     father   of   the   petitioner   and   name   Soma   disclosed   as   grand <\/p>\n
     father, we find it impossible to connect this document with the <\/p>\n
     petitioner.  Moreover, looking to the date of birth of said Ganpat <\/p>\n
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\n                                             36<\/span>
\n     and   passing   of   IV   Standard   by   him   in   1929,   again   it   is   not <\/p>\n
     possible   to  hold that   he  had son  Soma who could  have  given <\/p>\n
     birth   to   Yadavrao(father   of   petitioner),       65   years   old   as   on <\/p>\n
     16.7.2003. Thus this document can not be accepted as relevant <\/p>\n
     even   to examine any link in the light of pleadings in para 5 of <\/p>\n
     writ petition. The learned counsel for the petitioner has relied <\/p>\n
     upon   the   judgment   of   the   Hon’ble   Apex   Court   in   the   case   of <\/p>\n
     Gayatrilaxmi   B.   Nagpure   vs.   State   of   Maharashtra,<\/a>   reported   at <\/p>\n
     AIR 1996 SC 1338, to urge that as important documents are not <\/p>\n
     looked   into,   the   consideration   by   the   Scrutiny   Committee   is <\/p>\n
     vitiated.   The relevant observations noted by the Hon’ble Apex <\/p>\n
     Court there show that about 17 documents were produced by the <\/p>\n
     petitioner   Gayatrilaxmi   and   the   Hon’ble   Apex   Court   was   not <\/p>\n
     satisfied with the approach of Committee towards certificate at <\/p>\n
     Sr. Nos. 5, 7, 10, 13 & 14.  In the absence of any attempt on the <\/p>\n
     part of Government to suspect the correctness or genuineness of <\/p>\n
     documents produced, the observations made in first judgment in <\/p>\n
     Kum. Madhuri Patil, in para 14 are then noted in this judgment.\n<\/p>\n
     The   Court   has   to   see   whether   Committee   has   considered   all <\/p>\n
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\n                                              37<\/span>
\n     relevant   material   placed   before   it   and   applied   to   its   mind   to <\/p>\n
     relevant facts.   Here,  we are not in a position to find any fault <\/p>\n
     with the application of mind by the Scrutiny Committee.   The <\/p>\n
     production   of   these   two   documents   before   the   Scrutiny <\/p>\n
     Committee or their relevance and possible impact has not been <\/p>\n
     established & sufficiently demonstrated so as to enable us to take <\/p>\n
     a   view   as   in  Gayatrilaxmi-(supra).     In   any   case,   the   Scrutiny <\/p>\n
     Committee   has   looked   into   old   documents   and   how   that <\/p>\n
     consideration is or gets vitiated because of these two documents <\/p>\n
     has   not   been   demonstrated.     Thus,   mere   non   consideration <\/p>\n
     itself,   even   if   it   is   to   be   presumed   that   such   documents   were <\/p>\n
     produced, in present facts, is not sufficient to help the petitioner.\n<\/p>\n
     22            The Vigilance Cell has, in fact, while conducting field <\/p>\n
     enquiry, recorded the statement of father on the very first date <\/p>\n
     i.e. on 16.07.2003.  He has stated that his father i.e. grand father <\/p>\n
     of present petitioner was illiterate.  The native place (Takli) was <\/p>\n
     required to be left in 1930 because of flood.  He has also given <\/p>\n
     the family tree.  Yadavrao has given name of his grand father as <\/p>\n
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\n                                          38<\/span>
\n     Jagan.  When undated document showing name of Ganpat Dasru <\/p>\n
     is viewed in this background, the case of the petitioner appears <\/p>\n
     to   be   doubtful.     In   fact,   Scrutiny   Committee   has   alleged <\/p>\n
     deliberate   attempt   to   mislead.     We   find   substance   in   this <\/p>\n
     contention because in para 12 of the petition, the claim has been <\/p>\n
     made  that father was not examined by vigilance cell and it is <\/p>\n
     found   to   be   incorrect   by   us.     The   grievance   about   non <\/p>\n
     examination of uncle is also made but then the petitioner has not <\/p>\n
     given   any   reasons   why   he   could   not   examine   uncle   as   his <\/p>\n
     witness.   In para 12 of the petition, he has stated that he was <\/p>\n
     appointed as workshop attendant in the year 1997 and Act No. <\/p>\n
     23 of 2001 being prospective in nature, the Scrutiny Committee <\/p>\n
     has no jurisdiction to verify caste claim.   In para 21 at page 14 <\/p>\n
     again, it is contended that if services of the petitioner are not <\/p>\n
     protected, he would suffer irreparable loss.   In para 19, he has <\/p>\n
     mentioned   that   he   has  completed   16   years  of  service   and   the <\/p>\n
     principle to protect services in such circumstances is settled by <\/p>\n
     various judgments of the Hon’ble Supreme Court and High Court <\/p>\n
     as   also   by   Government   Resolutions   dated   15.06.1995, <\/p>\n
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\n                                          39<\/span>
\n     24.07.1998 and 04.09.2000.  It thus appears that by producing a <\/p>\n
     document not connected with him and by making such irrelevant <\/p>\n
     &   irresponsible   allegations,   the   petitioner   has   attempted   to <\/p>\n
     mislead this Court.   The petitioner was aware of the remark of <\/p>\n
     the research officer and had full opportunity to prove traits & <\/p>\n
     establish affinity. Without taking these steps to discharge burden <\/p>\n
     on him, petitioner has only raised roving pleas of too technical <\/p>\n
     nature   in   an   attempt   to   continue   to   usurp   the   status   by <\/p>\n
     misleading this Court.\n<\/p>\n
     23           The judgment of the Hon’ble Apex Court in the case <\/p>\n
     of  Madhuri   Patil   vs.   Additional   Director,   Tribal   Development, <\/p>\n
     (supra) contemplates a Committee of three officers and in case <\/p>\n
     of Scheduled Caste, another officer who has intimate knowledge <\/p>\n
     in the verification and issuance of the social status certificates, is <\/p>\n
     prescribed.   In the case of Scheduled Tribes candidate like the <\/p>\n
     petitioner, the Research Officer who has intimate knowledge in <\/p>\n
     identifying the tribes i.e. Tribal communities, parts of or groups <\/p>\n
     of tribes or Tribal communities, is directed to be associated.   In <\/p>\n
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\n                                           40<\/span>
\n     later   judgment   in   the   case   of  Madhuri   Patil   vs.   Additional  <\/p>\n
     Commissioner, Tribal Development, Thane,<\/a> (supra) in para 5, the <\/p>\n
     Hon’ble Apex Court has directed that along with Vigilance Cell, <\/p>\n
     one   Research   Officer\/   Tribal   Development   or   Social   Welfare <\/p>\n
     Officer   would   be   associated   in   finding   the   social   status   of <\/p>\n
     eligibility of the officers.  After this later judgment of the Hon’ble <\/p>\n
     Apex   Court,   the   State   Government   has   added   two   Research <\/p>\n
     Officers as members of Scrutiny Committee and as per judgment <\/p>\n
     in the case of Bharat vs. State of Maharashtra (supra), it is settled <\/p>\n
     by Division Bench of this Court that Research Officer associated <\/p>\n
     with Vigilance Cell and one functioning as Member of Scrutiny <\/p>\n
     Committee are distinct persons.   In this connection, Rule 10 of <\/p>\n
     2003   Rules   framed   under   Act   No.   23   of   2001   show   Research <\/p>\n
     Officer as part and parcel of vigilance cell.  In  Prajakta vs. State <\/p>\n
     of Maharashtra,<\/a>  (supra), Division Bench of this Court has after <\/p>\n
     considering this position, concluded that it is not necessary for <\/p>\n
     this   Research   Officer   to   accompany   Police   Officer   to   conduct <\/p>\n
     Police enquiry.   This view is reached after considering the view <\/p>\n
     reached by the learned Single Judge of this Court.  The learned <\/p>\n
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\n                                             41<\/span>
\n     Single Judge in the case of   Chhaya Namdeorao Binekar vs. State  <\/p>\n
     of Maharashtra,<\/a> (supra) held that Vigilance Cell enquiry need not <\/p>\n
     be strictly in accordance with exact words contained in Direction <\/p>\n
     No. 5 in Madhuri Patil’s judgment.  The direction of the Hon’ble <\/p>\n
     Apex   Court   is   held   by   the   Division   Bench   in   para   14   to   be <\/p>\n
     fulfilled   when   the   Research   Officer   functions   as   one   of   the <\/p>\n
     Members of the Committee.\n<\/p>\n
     24            In    Prajakta   vs.   State   of   Maharashtra,<\/a>   (supra), <\/p>\n
     Division Bench that as per subsequent judgment in the case of <\/p>\n
     Kumari   Madhuri   Patil   Vs.   Additional   Commissioner,  Tribal <\/p>\n
     Development,   Thane   and   others  (Second),   along   with   the <\/p>\n
     Vigilance   Cell,   one   Research   Officer\/Tribal   Development   or <\/p>\n
     Social Welfare Officer would be associated in finding the social <\/p>\n
     status   of   eligibility   of   the   officers.   It   then   notices   important <\/p>\n
     observations of Hon. Apex Court in the case of Director of Tribal  <\/p>\n
     Welfare, Government of A.P. Vs. Laveti Giri  and another, reported <\/p>\n
     in 1995 (4) SCC 32 where   while reiterating the guidelines in <\/p>\n
     Madhuri Patil’s case, Hon. Court has observed in paragraph 8 :\n<\/p>\n
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\n                                             42<\/span><\/p>\n
                       “While reiterating the above guidelines to be workable  <\/p>\n
     principles, it is high time that the Government of India should have <\/p>\n
     the matter examined in greater detail and bring about a uniform <\/p>\n
     legislation   with   necessary   guidelines   and   rules   prescribing   penal  <\/p>\n
     consequences ——……….—– ——plain\/spurious persons could be  <\/p>\n
     prevented.”\n<\/p>\n
                       This Division Bench finds that the guidelines issued <\/p>\n
     by   the   Apex   Court   are   in   the   nature   of   “workable   principles”.\n<\/p>\n
     Government   Resolutions   dated   07.03.1996,   15.03.1996   and <\/p>\n
     14.07.1997 by State  Government are  found issued in the light <\/p>\n
     of   modifications   suggested   by   the   Apex   Court   in   the   case   of <\/p>\n
     Kumari Madhuri Patil.   It then notes the observations made by <\/p>\n
     the learned Single Judge in paragraphs no.25 to 29 in the case of <\/p>\n
     Chhaya   Namdeorao   Binekar   Vs.   State  of   Maharashtra   &   others, <\/p>\n
     (supra) after noticing the relevant words in paragraph No.5 as <\/p>\n
     given by the Apex Court, & reproduces following observations of <\/p>\n
     learned Single Judge as under:\n<\/p>\n
                             “In my view,  since the State of Maharashtra has
\n              not specifically given effect to this part of direction No.5 of  <\/p>\n
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\n                                                43<\/span>
\n              the   Supreme   Court   in   its   Government   Resolutions,   as
\n              reproduced   hereinabove   and   in   its   wisdom,   it   has   left   the  <\/p>\n
              manner of its investigation to be carried out by the vigilance  <\/p>\n
              cell to be an open question. The manner of investigation need
\n              not   be   strictly   in   accordance   with   the   exact   words   of   the
\n              Supreme Court as reproduced hereinabove and that merely  <\/p>\n
              because   the   investigation   is   not   carried   out   strictly   in
\n              accordance with the wordings of the Supreme Court referred  <\/p>\n
              to hereinabove, that by itself would not vitiate the final order
\n              of   the   Caste   Scrutiny   Committee,   which   would   be  <\/p>\n
              subsequently   passed   after   giving   full   opportunity   to   a  <\/p>\n
              claimant the petitioner to put forward his case regarding his
\n              caste, to receive the copy of the vigilance cell report with all
\n              annexures and even to point out the lacuna, if any, in the  <\/p>\n
              vigilance  cell report  and its  enclosures,  before  the  Scrutiny  <\/p>\n
              Committee. This, however, would not mean that the vigilance
\n              cell   has   a   licence   to   carry   out   an   investigation   which   is
\n              slipshod, negligent or unfair.”\n<\/p><\/blockquote>\n
                     It also finds that the   Learned Single Judge has held <\/p>\n
     that   the   aggrieved   caste   certificate   holder   has   sufficient <\/p>\n
     safeguards after vigilance inquiry. The Division Bench has then <\/p>\n
     reproduced the situations in which learned Single Judge has held <\/p>\n
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\n                                              44<\/span>
\n     that  the ultimate order of the Scrutiny Committee would not be <\/p>\n
     vitiated.   Those   are:–(a)   If   the   Research   Officer   did   not <\/p>\n
     accompany the Police Officer to the actual field of investigation.\n<\/p><\/blockquote>\n
     (b)   That   the   investigation   of   the   vigilance   cell   need   not   be <\/p>\n
     strictly  in   accordance   with  the  relevant  words  as  contained  in <\/p>\n
     direction   No.5   and   as   reproduced   above.(c)   There   can   be <\/p>\n
     flexibility   in   the   manner   in   which   the   investigation   should   be <\/p>\n
     carried out as long as the investigation is not slipshod, negligent <\/p>\n
     or unfair. These observations of the learned Single Judge have <\/p>\n
     been approval in a case decided by the Division Bench of this <\/p>\n
     Court in the matter of  Sangeeta Balayya Bhurewar Vs. State of  <\/p>\n
     Maharashtra   &   others,   reported   in     2003   (5)   Mh.L.J.   645, <\/p>\n
     wherein said Division Bench has observed:-\n<\/p>\n
                          “Though   the   learned   Single   Judge   was   dealing
\n            with   the   situation   regarding   non   compliance   of   direction
\n            No.5,   whereby   the   investigation   in   the   social   status   of   the  <\/p>\n
            candidate was not done, the learned Single Judge found that
\n            such non compliance cannot vitiate the finding recorded by
\n            the Committee. We respectfully concur with the view taken by
\n            both the Single Judges in the judgments referred to above.”\n<\/p><\/blockquote>\n
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\n                                            45<\/span><\/p>\n
                  It also takes note of the fact that the same view of <\/p>\n
     reiterated  by  the  Division   Bench  of  this  Court   in  Writ   Petition <\/p>\n
     No.1930\/2003,   decided   on   08.07.2003.   In  2002(supp-2)   Bom.\n<\/p><\/blockquote>\n
     C.R. 268–Ramatai Madhukarrao Tapre vs. State Of Maharashtra,<\/a> <\/p>\n
     learned   Single   Judge   of   this   Court   followed   view   in  Chhaya <\/p>\n
     Namdeorao Binekar vs. State of Maharashtra,<\/a> (supra)  & also held <\/p>\n
     that research officer is not required to conduct field investigation <\/p>\n
     along with vigilance cell police officer.\n<\/p>\n
     25                     Division Bench judgment in the case of  Deorao G.\n<\/p>\n
     Umredkar   vs.   State  of   Maharashtra,   reported  at   2007   (5)   BCR <\/p>\n
     629   relied   upon   by   Adv.   Kaptan,   holds   in   paragraph   30   after <\/p>\n
     referring to judgment in Madhuri Patil that Research Officer is to <\/p>\n
     be   associated   as   an   expert   and   he   is   not   bestowed   with   any <\/p>\n
     exploratory   or   investigative   role.   He   has   only   consultative <\/p>\n
     character and entire report of vigilance cell is only an opinion <\/p>\n
     which does not bind the scrutiny committee. This Division Bench <\/p>\n
     holds him an “aide” who steps in after completion of exploration <\/p>\n
     & investigation by vigilance cell.  His role is found not that of an <\/p>\n
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\n                                             46<\/span>
\n     adjudicator. Thus it is already held by this Court that research <\/p>\n
     officer is not required to record his opinion through a reasoned <\/p>\n
     order with objective analysis.   Bharat vs. State of Maharashtra <\/p>\n
     (supra) also does not lay down any such law.\n<\/p>\n
                   Three   unreported     judgments     relied   upon   by   Adv.\n<\/p>\n
     Narnaware   now   need   brief   consideration.  W.P.   2136   of   2011,  <\/p>\n
     5340   of   2010  and   other   connected     petitions   decided   by   the <\/p>\n
     Division Bench at Aurangabad on 25\/8\/2011 consider validity of <\/p>\n
     a   condition   no.7   which   denied   appointment   or   promotion   to <\/p>\n
     candidate whose caste claim was under consideration of scrutiny <\/p>\n
     committee. Petitioners assailed it  as contrary to S.6(3) of Act 23 <\/p>\n
     of   2001   &   also   directions   in  Madhuri   Patil.   State   Government <\/p>\n
     attempted   to   justify   it   in   public   interest.   Condition   was     held <\/p>\n
     unreasonable   &   set   aside   after   noticing   impossibility   of <\/p>\n
     verification   of   caste   within   reasonable   time   due   to   large <\/p>\n
     pendency and S. 10 of said Act.     Unreported judgment in  W.P.\n<\/p>\n
     8413   of   2008,   260   of   2009    with   other   matters   decided   on <\/p>\n
     1\/9\/2009   at   Bombay     considered   the   issue   whether   one   A.V.\n<\/p>\n
     Hankare,   member   &   research  officer  was   competent   to  act   on <\/p>\n
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\n                                              47<\/span>
\n     committee. This person was nominated to complete quorum due <\/p>\n
     to promotion of research officer  Shri Shaikh. Division Bench has <\/p>\n
     noted that the committee was formed due to directions of Hon. <\/p>\n
     Apex Court in Madhuri Patil  and it was not pointed out how Shri <\/p>\n
     Hankare   was   found   eligible   .   The   challenge   was   thus   upheld.\n<\/p>\n
     Unreported   judgment   dated  20\/7\/2011   in  W.P.   5332   of   2004 <\/p>\n
     delivered by Division Bench at Nagpur (to which one of us viz. J.\n<\/p>\n
     B.P. Dharmadhikari is party) considers a case where the vigilance <\/p>\n
     cell   report   was   in   favour   of   petitioner   and   though   claim   of   a <\/p>\n
     scheduled tribe candidate was being looked into, research officer <\/p>\n
     was found not associated with vigilance inquiry. There, on facts, <\/p>\n
     inconsistent position about such association appearing on record <\/p>\n
     after   comparing   original   report   with   its   copy   supplied   to <\/p>\n
     petitioner is noted by this Court. Apart from  this other lacunae <\/p>\n
     having bearing on compliance with principles of natural justice <\/p>\n
     are also found. This case nowhere speaks of field inquiry by the <\/p>\n
     research officer. Thus these three unreported  judgments have no <\/p>\n
     relevance   in   present   matter.   The   Circular   dated   06.09.2000 <\/p>\n
     relied   upon   by   petitioner   also   does   not   spell     out   any   field <\/p>\n
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\n                                           48<\/span>
\n     enquiry by a Research Officer.\n<\/p>\n
     26           The Scrutiny Committee has heavily relied upon the <\/p>\n
     unreported   judgment   dated   12\/08\/2011   of   Division   Bench   of <\/p>\n
                                     . 107\/2010 . There the contention
\n      this Court at Aurangabad in  W.P<\/p>\n
     that Scrutiny committee was not constituted as per notification <\/p>\n
     dated 23\/6\/2003 issued under S. 6 of Act no. 23\/2001 has been <\/p>\n
     examined & thus question of violating the principles laid down in <\/p>\n
     Madhuri   Patil  did   not   arise.   Said   notification   appointed   the <\/p>\n
     Commissioner\/Director for Tribal Research & Training Institute, <\/p>\n
     Pune as Chairman and he was not present to decide. The quorum <\/p>\n
     prescribed was  3  & there  was no grievance  of its breach.  The <\/p>\n
     qualification   for   appointment   to   the   post   of   Senior   Research <\/p>\n
     Officer are prescribed by Rule 3 of notification dated 16\/5\/2006 <\/p>\n
     and challenge was to appointments of one D.P. Jagtap as senior <\/p>\n
     research officer and M.G. Navghare as research officer. Both of <\/p>\n
     them   were   the   members   of   scrutiny   committee.   The   Division <\/p>\n
     Bench   has   found   that   both   these   persons   were   not   possessing <\/p>\n
     requisite qualification. In this background, defence of De facto <\/p>\n
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\n                                             49<\/span>
\n     doctrine   by   Scrutiny   Committee   &   judgment   in  The   State     of  <\/p>\n
     Haryana vs. The Haryana Cooperative Transport Ltd. & Others<\/a>  –\n<\/p>\n
     AIR 1997  SC 237  has been considered.  Division  Bench notices <\/p>\n
     that   said   doctrine   requires   an   intruder   who   attempts   to   to <\/p>\n
     perform   the   duties   of   an   office   without   authority   of   law   & <\/p>\n
     without support of public acquiescence. His acts are not allowed <\/p>\n
     to be questioned except by some direct proceedings instituted for <\/p>\n
     the purpose by the State or by somebody claiming the office de-\n<\/p>\n
     jure   or   except   when   the   person   himself   attempts   to   build   up <\/p>\n
     some right or claim some privilege or employment by reason of <\/p>\n
     being   the   officer   which   he   claims   to   be.   The   finding   by   Hon. <\/p>\n
     Apex   Court   that   merely   because   writ   of   quo-warranto   is   not <\/p>\n
     sought in writ petition, it can   not be urged that appointment <\/p>\n
     was   challenged   collaterally   in   a   proceeding   to   challenge   the <\/p>\n
     award   is   also   noted.   In   this   light,   though   the   Division   Bench <\/p>\n
     found appointments of Jagtap & Navghare illegal, it also found <\/p>\n
     that these two persons were not usurpers of the post and they <\/p>\n
     were issued appointment orders, albeit without authority of law.\n<\/p>\n
     The Division Bench therefore in paragraph 20 of its order has <\/p>\n
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\n                                             50<\/span>
\n     remarked that decision of committee needed acceptance unless it <\/p>\n
     was found bad on some other ground. On merits, said Bench at <\/p>\n
     Aurangabad has found the decision vitiated as vigilance inquiry <\/p>\n
     there was conducted only by police officer and questions put to <\/p>\n
     find   out   affinity   regarding   sociological   traits   &   characteristics <\/p>\n
     were   not   recorded   by   vigilance   cell.   Earlier   Division   Bench   in <\/p>\n
     Ashwini   Anil   Chavan   vs.   State   of   Maharashtra<\/a>  reported   at <\/p>\n
     2006(4)   Mah.   L.J.   415  which   holds   such   record   essential   to <\/p>\n
     ascertain proper use of affinity test has been relied upon. This <\/p>\n
     Division Bench considers the order of Scrutiny Committee dated <\/p>\n
     15.10.2005 & observes that said committee has to apply its mind <\/p>\n
     to   the   report   of   research   officer.   In   writ   petition   before   us, <\/p>\n
     petitioner   Ajaykumar   has   not   led   any   evidence   before   the <\/p>\n
     Scrutiny Committee to establish affinity though he was aware of <\/p>\n
     the   adverse   opinion   of   Research   Officer.   Moreover,   before   this <\/p>\n
     Court also, there is no effort to demonstrate how said opinion of <\/p>\n
     Research Officer is incorrect. Moreover, the Scrutiny Committee <\/p>\n
     has independently considered the data collected by vigilance cell <\/p>\n
     and   concluded   that   the   knowledge   of   traits   &   characteristics <\/p>\n
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\n                                            51<\/span>
\n     were mentioned due to knowledge gathered from literature. His <\/p>\n
     contention that caste recorded as “Koshti” in documents was not <\/p>\n
     really  caste   but   profession   is  also   rejected.   This  application   of <\/p>\n
     mind by Scrutiny Committee is not shown to be perverse.\n<\/p>\n
     27           Consideration by the  Hon. Apex Court of scheme of <\/p>\n
     Kerla   (Scheduled   Castes   and   Scheduled   Tribes)   Regulation   of <\/p>\n
     Issue   of   Community   Certificates   Act,   1996   in  L.   Ushadevi   vs.  <\/p>\n
     Union of India,<\/a> (supra) fully supports the contention that  Act No. <\/p>\n
     23 of 2001 enacted by State of Maharashtra is a complete code.\n<\/p>\n
     The Hon. Apex Court has also held that Kerla Act is applicable to <\/p>\n
     employees of central government.\n<\/p>\n
                   In another important judgment  AIR 1997 S.CO. 2046  <\/p>\n
     “Director of Tribal Welfare v. Laveti Giri<\/a>” D\/- 10 -3 -1997;  Hon. <\/p>\n
     Apex Court considers   A.P. Scheduled Castes, Scheduled Tribes <\/p>\n
     and Backward Classes Rules for Issue of Community Certificates <\/p>\n
     Rules   (1997)   (Draft   Rules)   under     A.P.   (Scheduled   Castes, <\/p>\n
     Scheduled Tribes and Backward Classes) Regulation of Issue of <\/p>\n
     Community   Certificate   Act   (16   of   1993),   and   finds   that   said <\/p>\n
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\n                                            52<\/span>
\n     Rules are substantially in conformity with directions issued by it <\/p>\n
     in that behalf. As we are concerned with composition of Scrutiny <\/p>\n
     Committee in this writ petition, it is important to note how Hon. <\/p>\n
     Apex   Court   has   considered   the   said   aspect   as   far   as   Andhra <\/p>\n
     Pradesh Rules are concerned.\n<\/p>\n
                  “4. Rule 7 provides for constitution of Scrutiny and Review  <\/p>\n
     Committee   at   the   State   Level   and   Rule   8   deals   with   Scrutiny <\/p>\n
     Committee at the District Level. They are as under :\n<\/p>\n
           “Rule  7. Scrutiny and Review Committee (State level):\n<\/p>\n
     A Scrutiny and Review Committee shall be constituted at the State
\n     Level with the following officers :\n<\/p>\n
     a)\n<\/p>\n
     1)    Principal Secretary to Government Social Welfare Department.<\/p>\n
\n   \n\n\n\n           -  Chairman\n     2)    Commissioner, Social Welfare -             Member\n\n\n\n\n\n     3)    Commissioner, Tribal Welfare -             Member\n     4)    Commissioner, Welfare of Backward Classes. -                Member\n     5)    Inspector General of Police, C.B.C.I.D. (P.C.R. and Vigilance  \n\n\n\n\n\n           Cell). -       Member\n     6)    Additional Secretary\/Joint Secretary\/Deputy Secretary to the  \n           Government Social Welfare Department. -                     Member \n           (Convenor)\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 17:54:49 :::<\/span>\n                                            53<\/span>\n     b)    This Scrutiny and Review Committee shall meet one in three \n<\/pre>\n
           months or as often, depending on the necessity.\n<\/p>\n
     c)    Presence of three members will form the required quorum for <\/p>\n
           the meeting of the Committee.\n<\/p>\n
            d)     This   Committee   shall   review   and   monitor   the  \n            functioning of       the   Scrutiny   Committees   at   the   District  \n\n\n\n\n                                                    \n            level (constituted         under   Rule   8),   it   shall   render  \n<\/pre>\n
            necessary   advice   to   the   Government   on   various   policy  <\/p>\n
            decisions to be taken for streamlining the procedures  or on
\n            any   other   issues   related   to   the   issuing   of   Community  <\/p>\n
            Certificates as per Act 16 of 1993.\n<\/p>\n
            e) The Committee may also render necessary guidance and
\n            advice   to   the   Government   on   cases   referred   to   it,   where
\n            divergent and conflicting enquiry reports are received by the  <\/p>\n
            Government, in respect of the community claims.\n<\/p>\n
                      Rule  8. Scrutiny Committee (District Level) :\n<\/p>\n
     a) In every District, a Scrutiny Committee shall be constituted with
\n     the following officers :-\n<\/p>\n
     1. Joint Collector – Chairman\n<\/p>\n
     2. District Revenue Officer        – Member (Convenor)\n<\/p>\n
     3. Deputy Director (Social Welfare) – Member<\/p>\n
     Deputy Director (Tribal Welfare)\/District Tribal Welfare Officer.) –
\n     Member
\n     Deputy   Director   (Backward   Classes   Welfare)\/District   Backward
\n     Classes Welfare Officer – Member<\/p>\n
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\n                                               54<\/span>\n<\/p>\n
     4. Officer of the Research Organisation in the Commissionerate of
\n     SW\/TW nominated by the concerned Heads of the Department.                              –\n<\/p>\n
     Member<\/p>\n
     5.   Officer   representing   the   PCR\/Vigilance   Cell   in   the   District.-
\n     Member”\n<\/p>\n
     6.  A   reading   of   the   Rules   would   indicate   that   except   some  <\/p>\n
     variation, in the matter of the constitution of Committees, in Rules
\n     7   and   8   from   the   guidelines   issued,   all   other   provisions   are   in  <\/p>\n
     conformity with the guidelines issued by this Court.”\n<\/p>\n
                     This judgment needs to be viewed in background of <\/p>\n
     earlier   judgment   between   parties   reported   at   AIR   1995 <\/p>\n
     S.C.1506– “Director of Tribunal Welfare, Government of Andhra <\/p>\n
     Pradesh v. Laveti Giri<\/a>” D\/- 18 -4 -1995, where the   Hon. Apex <\/p>\n
     Court has observed:–\n<\/p>\n
                    “It is, therefore, necessary that   the certificates issued  <\/p>\n
     are   scrutinized   at   the   earliest   and   with   utmost   expedition   and  <\/p>\n
     promptitude.  For   that purpose, it is necessary to streamline the <\/p>\n
     procedure for the issuance of social status certificates, their scrutiny  <\/p>\n
     and their approval, which may be the  following :-”\n<\/p>\n
                   These 15 directions are not reproduced here as above <\/p>\n
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\n                                             55<\/span>
\n     part itself is sufficient to demonstrate its nature as guidelines.\n<\/p>\n
     This also becomes clear from observations of Hon. Apex Court <\/p>\n
     which appear immediately after these guidelines.  Hon’ble Apex <\/p>\n
     Court in this judgment then observes:–\n<\/p>\n
                          “7.  While reiterating the above guidelines to be <\/p>\n
            workable principles, it is high time that the Government of  <\/p>\n
            India would have the matter examined in greater detail and  <\/p>\n
            bring about a uniform legislation with necessary guidelines  <\/p>\n
            and   rules   prescribing   penal   consequences   on   persons  who  <\/p>\n
            flout the Constitution and corner the benefits reserved for the <\/p>\n
            real tribals etc. etc. so that the menace of fabricating the false  <\/p>\n
            records and to gain unconstitutional advantages by plain \/  <\/p>\n
            spurious persons could be prevented. Lest they would defeat  <\/p>\n
            the   Constitutional   objective   of   rendering   socio-economic  <\/p>\n
            justice   envisaged   under   Article   46   in   the   Preamble   of   the <\/p>\n
            Constitution  under Articles 14, 15, 16, 38 and 39.”\n<\/p><\/blockquote>\n
     28            The   dispute     whether   directions   in  Madhuri   Patil-\n<\/p>\n
     (supra)   are   mandatory   or   not   is   already   settled   by   this   Court <\/p>\n
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\n                                             56<\/span>
\n     after noticing that Hon. Apex Court itself held it to be “working <\/p>\n
     principles” or “guide lines”. But then whether petitioner’s effort <\/p>\n
     to work out a legal injury by alleging inconsistency between the <\/p>\n
     statutory   notification   under   S.   6   of   Act   23   of   2001   &   these <\/p>\n
     directions   of   Hon’ble   issued   when   the   field   was   unoccupied, <\/p>\n
     holds any water or not also needs to be gone into.                   Act no.23 of <\/p>\n
     2001   came   into   force   with   effect   from   18\/10\/2001.   State <\/p>\n
     Government constituted Committee as required by S. 6 thereof <\/p>\n
     for Nagpur area vide notification dated 4\/6\/2003. It consists of 5 <\/p>\n
     members   &   the   Commissioner\/Director   for   Tribal   Research   & <\/p>\n
     Training Institute, Pune is the Chairman of this Committee while <\/p>\n
     Additional   Commissioner,   Tribal   Development,Nagpur   was   its <\/p>\n
     Vice-Chairman.   Deputy   Director   (Research)   is   its   member-\n<\/p>\n
     secretary.   Senior   Research   officer   &   Research   Officer   are   its <\/p>\n
     members.   On   12\/7\/2006,   by   another   notification   State   has <\/p>\n
     effected   slight   change   in   this   composition   &   substituted   Joint <\/p>\n
     Commissioner,   Nagpur   as   its   Vice-Chairman.     Committee <\/p>\n
     constituted   on   9\/9\/1999   consisted   of   Director   for   Tribal <\/p>\n
     Research   &   Training   Institute,   Pune   as   Chairman,   Additional <\/p>\n
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\n                                             57<\/span>
\n     Commissioner, Tribal Development as its Vice-Chairman, Deputy <\/p>\n
     Director   (Research)   is   its   member-secretary   &   Two   Research <\/p>\n
     officers also were its members. Notifications issued under S. 6 of <\/p>\n
     Act   no.   23\/2001   do   not   refer   to   this   1999   notification   or   to <\/p>\n
     judgments   of   Hon.   Apex   Court   in   Madhuri   Patil’s   cases.   Said <\/p>\n
     Enactment   also   does   not   contain   any   such   reference.   It   is <\/p>\n
     apparent that Act no. 23 of 2001 is therefore issued in exercise of <\/p>\n
     its   legislative   powers   under   Constitution   of   India   by   State <\/p>\n
     Legislature and its competence to do so or then validity of said <\/p>\n
     exercise is not in dispute before us. There are no such prayers or <\/p>\n
     arguments   advanced   by   petitioner.   S.2(k)   of   the   Act   defines <\/p>\n
     Scrutiny Committee as constituted under sub-section(1) of S.6.\n<\/p>\n
     Section 6 confers absolute powers upon State to constitute such <\/p>\n
     Committee and even that provision is not assailed before us. Adv.\n<\/p>\n
     Kaptan & Adv. Patil have advanced arguments before us to assail <\/p>\n
     attempt made by petitioner to co-relate & compare constitution <\/p>\n
     of   S.   6   Committee   with   Committee   functioning   earlier   as   per <\/p>\n
     directions   of   Hon.   Apex   Court   in   Madhuri   Patil’s   matters.\n<\/p>\n
     Petitioner has not even attempted to meet their attack. Whether <\/p>\n
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\n                                            58<\/span>
\n     an otherwise valid enactment which comes into force later on <\/p>\n
     can   be   scrutinized   in   the   light   of   “workable   principles”     in <\/p>\n
     judgment delivered when that field was unoccupied is therefore <\/p>\n
     the issue that arises in this situation.\n<\/p>\n
     29       Precedents   on   validity   of   law   enacted   to   get   over   the <\/p>\n
     judgments of a Court hold an answer to this issue. Hon. Apex <\/p>\n
     Court in AIR 1965 S.C. 1887 -“Rajeswar Prasad Misra v. State of  <\/p>\n
     W.B.” , states that its  observations can not be read as statutory <\/p>\n
     enactments.   This   judgment   shows   that   no   doubt,   the   law <\/p>\n
     declared by Apex Court binds Courts in India but it has directed <\/p>\n
     to       remember   that   it   does   not   enact.   The   Code   of   criminal <\/p>\n
     procedure   contemplates   that   a   retrial   may   be   ordered   after <\/p>\n
     setting aside the conviction or acquittal  if the trial already held <\/p>\n
     is found to be unsatisfactory or leads to a failure of justice. The <\/p>\n
     Legislature has not chosen to indicate the limits of the power of a <\/p>\n
     Court   in   Cr.P.C.   and   this   precedent   shows   that   it   (Hon.   Apex <\/p>\n
     Court)   must   not   be   understood   to   have   laid   them   down   & <\/p>\n
     illustrations   in   its   previous   judgments   are   stated   to   be   not <\/p>\n
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\n                                            59<\/span>
\n     exhaustive. In AIR 1976 S.C. 2250 “I. N. Saksena v. State of M.P.”,  <\/p>\n
     Hon. 4 Judges bench of Apex Court lays down that the validity of <\/p>\n
     a validating law is to be judged by applying three tests. Firstly, <\/p>\n
     whether the legislature possesses competence over the subject-\n<\/p>\n
     matter, and secondly, whether by validation the legislature has <\/p>\n
     removed the defect which the Courts had found in the previous <\/p>\n
     law and thirdly, whether it is consistent with the provisions of <\/p>\n
     Part III of the constitution. Applying these tests it  held that the <\/p>\n
     provisions of Sections 2 and 5 of M. P. Shasakiya Sevak Anivarya <\/p>\n
     Sevanivritti Ka Vidhimanyata Karan Adhiniyan   (5 of 1967) are <\/p>\n
     valid & not an encroachment on judicial power. Hon. Court has <\/p>\n
     pointed out that the distinction between a “legislative” act and an <\/p>\n
     “judicial” act is well known, though in some specific instances the <\/p>\n
     line   which   separates   one   category   from  the   other   may  not   be <\/p>\n
     easily discernible.  Hon’ble  Court  states  that an  adjudication  of <\/p>\n
     the   rights   of   the   parties   according   to   law   enacted   by   the <\/p>\n
     legislature   is   a   judicial   function.   In   the   performance   of   this <\/p>\n
     function, the Court interprets and gives effect to the intent and <\/p>\n
     mandate of the legislature as embodied in the statute. On the <\/p>\n
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\n                                             60<\/span>
\n     other   hand,   it   is   for   the   legislature   to   lay   down   the   law, <\/p>\n
     prescribing   norms   of   conduct   which   will   govern   parties   and <\/p>\n
     transactions and to require the Court to give effect to that law. It <\/p>\n
     also   clarifies   that   while,   in   view   of   this   distinction   between <\/p>\n
     legislative and judicial functions, the legislature cannot by a bare <\/p>\n
     declaration, without more, directly overrule, reverse or override <\/p>\n
     a judicial decision, it may, at any time in exercise of the plenary <\/p>\n
     powers   conferred   on   it   by   Article   245   and   246   of   the <\/p>\n
     Constitution render a judicial decision ineffective by enacting a <\/p>\n
     valid   law   on   a   topic   within   its   legislative   field   fundamentally <\/p>\n
     altering or changing retrospective, curative or neutralizing effect <\/p>\n
     the conditions on which such decision is based. The rendering <\/p>\n
     ineffective   of   judgments   or   orders   of   competent   Courts   and <\/p>\n
     tribunals   by   changing   their  basis  by  legislative   enactment   is  a <\/p>\n
     well   known   pattern   of   all   validating   Acts.   Such   validating <\/p>\n
     legislation   which   removes   the   causes   for   ineffectiveness   or <\/p>\n
     invalidity   of   action   or   proceedings  is   not   an   encroachment   on <\/p>\n
     judicial power.     Shri Patil has relied upon  AIR 2005 S.C. 3446  <\/p>\n
     “State Bank’s Staff Union (Madras Circle) v. Union of India<\/a>” where <\/p>\n
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\n                                             61<\/span>
\n     “I. N. Saksena v. State of M.P.”(supra) has been followed to state <\/p>\n
     that   the   Legislature   cannot   by   a   mere   declaration,   without <\/p>\n
     anything more, directly overrule, reverse or override a judicial <\/p>\n
     decision. However, it may, at any time in exercise of the plenary <\/p>\n
     powers   conferred   on   it   by   the   Constitution   render   a   judicial <\/p>\n
     decision ineffective by enacting a valid law on a topic within its <\/p>\n
     legislative   field,   fundamentally   altering   or   changing   with <\/p>\n
     retrospective,   curative   or   neutralizing   effect   the   condition   on <\/p>\n
     which   such   decision   is   based.       Whenever   any   amendment   is <\/p>\n
     brought   in   force   retrospectively  or   any  provision   of  the   Act   is <\/p>\n
     deleted retrospectively, in this process rights of some are bound <\/p>\n
     to be effective one way or the other. In every case the exercise by <\/p>\n
     legislature by introducing a new provision or deleting an existing <\/p>\n
     provision   with   retrospective   effect   per   se   does   not   amount   to <\/p>\n
     violation   of   Art.   14   of   the   Constitution.   The   legislature   can <\/p>\n
     change the basis on which a decision is given by the Court and <\/p>\n
     thus   change   the   law   in   general,   which   will   affect   a   class   of <\/p>\n
     persons and events at large. As laid down by Hon. Apex Court, <\/p>\n
     such legislation cannot, however, set aside an individual decision <\/p>\n
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\n                                            62<\/span>
\n     inter parties and affect their rights and liabilities alone. Such an <\/p>\n
     act   on   the   part   of   the   legislature   amounts   to   exercising   the <\/p>\n
     judicial power by the State and to function as an appellate Court <\/p>\n
     or Tribunal, which is against the concept of separation of powers.\n<\/p>\n
     Recently in  AIR 2010 S.C. 3143   -“A. Manjula Bhashini v. M.D.,  <\/p>\n
     A.P. Women’s Co-op. Finance Corpn. Ltd.<\/a>“, Hon’ble Apex Court has <\/p>\n
     held that the language of first proviso to S. 7 of A.P. (Regulation <\/p>\n
     of Appointments to Public Services and Rationalisation of Staff <\/p>\n
     Pattern of Pay Structure) Act (2 of 1994), by which the policy of <\/p>\n
     regularization was engrafted in the 1994 Act revealed that the <\/p>\n
     amendments   were   made   with   the   sole   object   of   removing   the <\/p>\n
     ambiguity in the policy contained in G. O. dated 22-4-1994 and <\/p>\n
     the same were not intended to nullify or override the judgment <\/p>\n
     in   (1998)   2   Andh   LT   5   (SC).     It   found   that   policy   of <\/p>\n
     regularization as contained in first proviso to S.7 of Act No. 27 of <\/p>\n
     1998 is one time measure intended to benefit only those daily <\/p>\n
     wage employees,  who completed 5 years continuous service on <\/p>\n
     or   before   25-11   1993   &   employees   who   completed   5   years <\/p>\n
     service   after   25-11-1993   cannot   claim   regularization.     S.7A <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                             63<\/span>
\n     providing of abatement of claims arising under any Government <\/p>\n
     order, judgment, decree or order of any Court, Tribunal or other <\/p>\n
     authority   was   held   not   an   encroachment   on   Court’s   power   of <\/p>\n
     judicial review.\n<\/p>\n
     30.                   These judgments of Hon’ble Apex Court, therefore, <\/p>\n
     show that an error or lacuna judicially noticed and resulting in <\/p>\n
     vitiation of a legislation can be cured by a proper legislation. It is <\/p>\n
     obvious that the legislature always intended to enact a valid law <\/p>\n
     within  four corners of its powers and Hon’ble Apex Court  has <\/p>\n
     found that such factors vitiating it can always be rectified by the <\/p>\n
     legislature even retrospectively. Thus when an adjudication can <\/p>\n
     be avoided by competent legislation, here where there was no <\/p>\n
     legislation at all, it can not be perceived that Hon. Apex Court <\/p>\n
     while issuing various directions in its judgments in Madhuri Patil <\/p>\n
     (supra)   wanted   State   Legislature   not   to   exercise   its   plenary <\/p>\n
     powers  under  schedule  VII or  then expected it  to exercise  the <\/p>\n
     same   in   particular   manner.   Its   no   doubt   true   that   in   view   of <\/p>\n
     unique position of Hon’ble Apex Court in constitutional set-up of <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                             64<\/span>
\n     this Country, such directions need to be given due importance & <\/p>\n
     consideration   by   State   Legislature.   The   same   are   obviously <\/p>\n
     guidelines to control exercise of a power which otherwise may <\/p>\n
     appear un-canalized. However, merely because State Legislature <\/p>\n
     has   in   exercise   of   its   constitutional   powers   enacted   a   law   in <\/p>\n
     particular manner or even little differently than said “workable <\/p>\n
     principles”, it can not be labeled as unconstitutional or bad as it <\/p>\n
     does not cease to be law under schedule VII of the Constitution <\/p>\n
     of India or then it does not violate any constitutional safeguards.\n<\/p>\n
     Three tests laid down by the Hon’ble Apex Court & noted above, <\/p>\n
     when applied here, do not lead to any such finding of invalidity <\/p>\n
     of   Act   no.   23   of   2001.   The   Hon’ble.   Apex   Court   has   only <\/p>\n
     recognized need to have a uniform legislation but has not issued <\/p>\n
     any   mandate   to   legislate   and,   normally,   Courts   may   not   issue <\/p>\n
     such   a   direction   or   a   direction   to   adopt   particular   scheme   in <\/p>\n
     proposed Statute. Hence, effort undertaken by petitioner to show <\/p>\n
     violation of the “workable principles” by a valid State Enactment <\/p>\n
     is   itself   misconceived.   Said   effort,   however,   was   bound   to <\/p>\n
     succeed had the field still remained unoccupied.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                              65<\/span><\/p>\n
     31.         Though it is argued by learned Counsel for petitioner <\/p>\n
     that 2003 Rules framed by State of Maharashtra under Act no.\n<\/p>\n
     23 of 2001 have not been placed before Hon. Apex Court & its <\/p>\n
     approval   has   not   been   obtained   as   in  AIR   1997   S.CO.   2046 <\/p>\n
     “Director   of   Tribal   Welfare   v.   Laveti   Giri<\/a>”   D\/-   10   -3   -1997;  no <\/p>\n
     direction of Hon. Apex Court or any other law obliging State to <\/p>\n
     do   so   has   been   pointed   out.   This   1997   judgment   is   in   the <\/p>\n
     backdrop of its 1995 judgment at AIR 1995 S.C. 1506 “Director  <\/p>\n
     of   Tribunal   Welfare,   Government   of   Andhra   Pradesh   v.   Laveti  <\/p>\n
     Giri<\/a>“(supra),   where   after     considering   the   serious   problem   & <\/p>\n
     usurption   by   spurious   candidates,   (same  Hon’ble.   Judges   who <\/p>\n
     decided Madhuri Patil) Hon’ble Court has observed– “After falsely <\/p>\n
     gaining   entry,   resort   to   dilatory   tactics   and   create   hurdles   in  <\/p>\n
     completion   of   the   inquiries   by  the   Scrutiny   Committee.   It   is   the  <\/p>\n
     parent or the guardian who may play fraud claiming false status  <\/p>\n
     certificate   of   his   child.   It   is,   therefore,   necessary   that     the  <\/p>\n
     certificates issued are scrutinized at the earliest and with utmost  <\/p>\n
     expedition and promptitude. For   that purpose, it is necessary to  <\/p>\n
     streamline   the   procedure   for   the   issuance   of   social   status  <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                            66<\/span>
\n     certificates,  their  scrutiny and their approval,  which  may be  the  <\/p>\n
     following”.  Nature of these guidelines is  already narrated by us <\/p>\n
     above.   In   this   situation,   when   there   is   no   challenge   to <\/p>\n
     constitutionality of Act no. 23 of 2001 and directions issued by <\/p>\n
     Hon. Court are only “workable principles” which do not in any <\/p>\n
     way eclipse the legislative powers of State, We do not find any <\/p>\n
     merit   in   the   petitioner’s   challenge   to   composition   of   Scrutiny <\/p>\n
     Committee.\n<\/p>\n
     32.            Moreover, here  affidavit filed on behalf of respondent <\/p>\n
     2 Scrutiny Committee denying the assertion of petitioner about <\/p>\n
     its composition. The scrutiny Committee has pointed out S. 6 of <\/p>\n
     Act no. 23 of 2001 as its source and hence, non-applicability of <\/p>\n
     guidelines in Madhuri Patil. It has also pointed out absence of <\/p>\n
     pleadings   in   writ   petition   to   enable   this   Court   to   undertake <\/p>\n
     scrutiny into its composition. Without prejudice, it is pleaded on <\/p>\n
     affidavit   that   Commissioner\/Director   for   Tribal   Research   & <\/p>\n
     Training   ,Pune   who   is   Chairman   of   the   Committee   is   an   IAS <\/p>\n
     officer   in   the   rank   of   Joint   Secretary.   Second   Member   of   the <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                            67<\/span>
\n     Committee  i.e. Additional Commissioner  is  disclosed to be  the <\/p>\n
     person of the rank of Director of Tribal Welfare. Hence, in matter <\/p>\n
     before us, constitution of the committee can not be said to be <\/p>\n
     even contrary to direction number 4 in Madhuri Patil’s judgment <\/p>\n
     of   Hon’ble   Apex   Court.   We   also   note   that   petitioner   has   not <\/p>\n
     raised any objection to the composition of Scrutiny Committee at <\/p>\n
     the earliest before the Committee itself or then before the State <\/p>\n
     Government. On the contrary, he participated in its proceedings <\/p>\n
     effectively & took efforts to have  an adjudication in his favour. It <\/p>\n
     is also not his case that during any of the hearings there was no <\/p>\n
     quorum. Quorum is explained in paragraph 7 of its judgment in <\/p>\n
     The Punjab University, Chandigarh vs. Vijay Singh Lamba & Ors,<\/a> <\/p>\n
     (supra) by  Hon’ble  Apex Court to mean the number of persons <\/p>\n
     adequate to validly transact business of any body. Here, there is <\/p>\n
     no   effort   to   even   urge   that   the   business   transacted   by   the <\/p>\n
     Scrutiny Committee was vitiated on any count. We therefore find <\/p>\n
     that  doctrine of  de-facto  is  also  attracted  in present  case.  The <\/p>\n
     Chairman of the Scrutiny Committee,even if held to be not of <\/p>\n
     rank expected by Hon’ble Apex Court, it is not sufficient to vitiate <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                              68<\/span>
\n     otherwise   valid   adjudication   here.   The   Scrutiny   Committee <\/p>\n
     which has passed impugned order consisted of an officer of the <\/p>\n
     rank of  joint secretary,  other two highly placed officers & two <\/p>\n
     research   officers.     Hence,   in   the   absence   of   any   arguments   of <\/p>\n
     resulting prejudice, even if contention of petitioner is presumed <\/p>\n
     to be true, still the above doctrine dis-entitles him to any relief.\n<\/p>\n
     The State  of Haryana vs. The Haryana Cooperative Transport Ltd.\n<\/p>\n
     &   Others    (supra)   unreported   judgment   dated   12\/08\/2011   of <\/p>\n
     Division   Bench   of   this   Court   at   Aurangabad   in  W.P.   107\/2010 <\/p>\n
     apply with full vigour. Even otherwise, We have already noticed <\/p>\n
     that he has not approached this Court with clean hands & his <\/p>\n
     blameworthy conduct is itself sufficient to deny him the relief.\n<\/p>\n
     This is not the matter where by picking up some lacuna here & <\/p>\n
     there, and without pointing out its impact on consideration of <\/p>\n
     merits   of   controversy   by   a   Scrutiny   Committee,   the   petitioner <\/p>\n
     can   hope   to   continue   to   enjoy   that   status   to   which   he   is   not <\/p>\n
     legally   entitled.   Petitioner   who   failed   to   discharge   the   basic <\/p>\n
     burden   to   establish   his   caste   claim   by   producing   relevant <\/p>\n
     material   has   attempted   to   throw   entire   burden   on   State <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                              69<\/span>
\n     Government and by abusing the process succeeded in securing <\/p>\n
     second term for himself.  Since we are not taking a view different <\/p>\n
     than any binding precedent in the matter,there is no scope for <\/p>\n
     reference to larger bench. The necessary facts are pleaded are <\/p>\n
     placed by the Scrutiny Committee & hence, reference to other <\/p>\n
     judgments cited before us is not called for.\n<\/p>\n
     33.  <\/p>\n
                   We accordingly find no merit in the matter and writ <\/p>\n
     petition is dismissed. Rule is discharged.   However, in the facts <\/p>\n
     and   circumstances   of   the   case,   there   shall   be   no   orders   as   to <\/p>\n
     costs.\n<\/p>\n
                   JUDGE                                        JUDGE <\/p>\n
                   At this stage, Shri Narnaware, learned counsel for the <\/p>\n
     petitioner seeks continuation of interim order, which is already <\/p>\n
     operating, for a period of six weeks.  Shri Patil, learned counsel <\/p>\n
     for   respondent   No.2   points   out   that   here   the   question   is   of <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:54:49 :::<\/span>
\n                                          70<\/span>
\n     continuation on a post of Municipal Councillor.\n<\/p>\n
                In   the   interest   of   justice,   we   continue   the   interim <\/p>\n
     orders already operating for a period of six weeks from today.\n<\/p>\n
     The same shall cease to operate automatically after expiry of the <\/p>\n
     said period.\n<\/p>\n
                JUDGE                                       JUDGE \n                   \n\n                                     *******\n      \n   \n\n\n\n     *GS.\/\n     dragon\n\n\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 17:54:49 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ajaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011 Bench: B. P. Dharmadhikari, A.P. Bhangale 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. & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-31411","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAjaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajaykumar-yadaorao-nikhar-vs-state-of-maharashtra-on-11-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajaykumar Yadaorao Nikhar vs State Of Maharashtra on 11 November, 2011 - 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