Full Judgment Text
2018:BHC-OS:4191-DB
suresh 915-WP-144.2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.144 OF 2018
Pankaj Shobhnath Yadav,
Age: 49 years, Occ: Business,
residing at: 301, Sharda Cooperative
Housing Society Limited, Natwar
Nagar, Road No.3, Jogeshwari (E),
Mumbai – 400 060. .... Petitioner
Versus
1. State of Maharashtra
through its Department of Social
Justice & Special Assistance,
Mantralaya, Mumbai400 032.
2. Municipal Corporation of Greater
Mumbai, Mahanagarpalika Marg,
Mumbai – 400 001.
3. The Municipal Commissioner,
The Municipal Corporation of
Greater Mumbai, having his office
at Mahapalika Marg, Mumbai
Pin: 400 001.
4. The District Caste Certificate Scrutiny
Committee, Mumbai Suburban,
Mumbai.
5. Sou. Shilpa Santosh Salvi,,
residing at: Room No.10,
Joshi Chawl, Veer Nilesh Savant
Marg, Bandrekarwadi,
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Jogeshwari (East), Mumbai
Pin: 400 060.
6. Anil Dashrath Mane,
residing at: Room No.5,
Bangar Chawl, Kamgar Kalyan
Bhavan, Gundavali, Andheri (E),
Mumbai – 400 069. .... Respondents
Mr. Y.S. Jahagirdar, Senior Counsel i/by Mr. Pramod
N. Patil for the Petitioner.
Ms Geeta R. Shastri, Addl. Government Pleader, for
Respondent Nos.1 & 4.
Mr. Sagar Patil for Respondent Nos.2 & 3.
Mr. R.K. Mendadkar with Mr. Kamat Gaikwad for
Respondent No.6.
CORAM: S.C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
DATE : MARCH 15, 2018
ORAL JUDGMENT ( Per Shri S.C. DHARMADHIKARI, J. ):
1. Rule. The respondents waive service through their
respective counsel. By consent, rule is made returnable forthwith
and the writ petition is taken up for hearing and final disposal.
2. By this petition under Article 226 of the Constitution
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of India, the petitioner challenges the order of the District Caste
Certificate Scrutiny Committee, Mumbai Suburban, Mumbai,
invalidating the claim of the petitioner as belonging to Other
Backward Class.
3. The order under challenge, dated 1682017, holds
that the petitioner's caste claim, based on the Certificate issued,
now cannot be validated. He will, therefore, have to forgo this
Caste Certificate issued to him. This Caste Certificate, dated
7112016, certifying him as belonging to Yadav, Other
Backward Class is, therefore, cancelled.
4. It is common ground that the petitioner in this
petition is a resident of Mumbai and Citizen of India. The
respondents to this petition include the State, Municipal
Corporation of Greater Mumbai, the Municipal Commissioner,
the District Caste Certificate Scrutiny Committee, Mumbai
Suburban, Mumbai, and respondent Nos.5 and 6 are the original
contestants and to an election. The petitioner in his petition says
that he was desirous of availing the benefits meant for the Other
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Backward Classes in the State of Maharashtra. The Election
Commission declared election programme for the general
elections of the Municipal Corporation of Greater Mumbai.
There are 227 Wards where the elections were scheduled to be
held. The petitioner says that he belongs to Yadav Caste,
recognised as Other Backward Class in the State of Maharashtra.
The Yadav Caste was included in the category of Other
Backward Class in the State of Maharashtra by and under
Government Resolution dated 5101979. Initially, two
Castes/Classes styled as Other Backward Classes Yadav and
Ahir were included in the list of Other Backward Class at Serial
No.198. The claim of the petitioner is that they were taken as
similar or synonymous. Later on, Ahir was deleted from the
Other Backward Class and included in the Nomadic Tribe
category. Subsequently, by a Government Resolution dated
3012014 Ahir has been included again in the Other Backward
Class category at Serial No.198 along with Yadav as similar or
synonymous.
5. Relying upon all this, the petitioner claimed a Caste
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Certificate. On an application made to the Competent Authority,
the Caste Certificate was issued on 7112016, copy of which is
at Annexure “C” to the paperbook.
6. The petitioner contested the elections from Ward
No.72 (KEast). He relied upon his Caste Certificate. He
submitted his application/nomination on 2712017 in the
prescribed Form. After his Nomination was accepted, the
elections followed, in the sense the Nomination was treated as
valid till the date of the poll. After the polling, the results were
declared and the petitioner was declared elected, he having
secured the highest number of votes amongst the contesting
candidates.
7. Then, the petitioner was required to obtain a Caste
Validity Certificate in terms of the legislation, namely, the
Mumbai Municipal Corporation Act, 1888 but amended later on.
Hence, the Certificate on the strength of which the election was
contested by the petitioner and won, came to be forwarded for
scrutiny and verification by the Competent Scrutiny Committee.
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8. The petitioner, as is the demand of that law, was
obliged to prove and substantiate his caste claim. He filed
number of documents, including a Caste Certificate dated
2031980, issued by the Tahsildar, Madiyahu, Jaunpur, Uttar
Pradesh. That Certificate, according to the petitioner, certifies
that his father Shobhnath Rupnath Yadav belongs to Ahir
(Yadav) Caste. Meaning thereby, this was treated as
synonymous to Yadav in the State of Uttar Pradesh at the
relevant time. The petitioner also relied upon a Caste Certificate
dated 2571986, issued by the Tahsildar and Executive
Magistrate, Andheri, Mumbai certifying that the petitioner's
father belongs to Yadav Caste. He also relied upon a Kisan Book
dated 2891995, issued by the Revenue Department,
Government of Uttar Pradesh, Janpad Jaunpur. The documents
and the records were forwarded to a Vigilance Cell. There are
extensive arguments canvassed before us by Mr. Jahagirdar,
learned Senior Counsel, with regard to the constitution of this
Vigilance Cell. He would submit that the Vigilance Cell must
necessarily comprise of a District Superintendent of Police or an
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equivalent level official and who is not expected to merely
append his signature on the report of the Vigilance Cell. He is
not supposed to be leaving the whole inquiry to a Constable or
an Inspector level official. It may be that visits to native places or
villages or remote areas, Schools, Colleges and other places
therein are by the Police Constable or an Inspector level official.
However, their findings are then compiled in a report of the
Vigilance Cell. The Vigilance Cell is comprising of this Deputy
Superintendent of Police or an equivalent level official. He is
expected to verify these findings independently and then append
his signature. He is placed in the Cell not because of his rank but
also because he has the power to supervise and monitor the
working of these officials. Hence, his presence is vital and
crucial. In the instant case, the Vigilance Cell report does not
indicate that it is bearing his signature and with the required
endorsement. Therefore, this report could not have been relied
upon.
9. The findings therein may not be conclusive and
binding on the Committee but surely the Committee cannot call
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upon a Cell like the instant one to hold an inquiry. That is not an
empty formality in the scheme of law. Relying upon the
language of Rule 12 of the Maharashtra Scheduled Castes,
Denotified Tribes ( Vimukta Jatis ), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Rules, 2012,
Mr. Jahagirdar would submit that, that is indicative of the
legislative intent. We cannot ignore the plain words of this Rule
or the statutory prescription and then proceed to accept such
report. In the circumstances, we would be called upon in each of
the matters which are placed today on our board, to decide the
legality and validity of such reports.
10. We at once clarify that this aspect of the matter need
not be gone into in the facts and circumstances of the present
case for Mr. Jahagirdar is on a sound footing as far as the merits
are concerned.
11. Mr. Jahagirdar's criticism in this case is that the
order of the Committee is not a speaking order. There are no
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reasons assigned as to why the Certificates, issued to the father
of the petitioner way back in the year 1980 and 1986, certifying
him as Ahir Yadav, have to be discarded. If they with their
contents have to disbelieved, then, it was incumbent upon the
Committee to have assigned independent, satisfactory and
cogent reasons. Inviting our attention to the order passed in the
instant case, it is urged by Mr. Jahagirdar that in one paragraph
the whole exercise is concluded. A copy of this order is at page
95 of the paperbook, and with his assistance we have perused
it. On pages 96 & 97 are the opening paragraphs. From page 97
onwards till page 102, only pleadings of the parties and
particularly the complainants Shilpa Santosh Salvi and Anil
Dashrath Mane are reproduced. Thus, their grievances are
referred extensively by reproducing the pleadings and what we
find at the end of all this, according to Shri Jahagirdar, are
unnumbered paragraphs where the issues are framed. There is
no finding issue wise but if point or issue Nos.1 & 2 are taken,
according to the Senior Counsel, they do not mean that the
Caste Certificate of the petitioner has been discarded. In the
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sense it is stated that it is issued by a Competent Authority.
Secondly, it is held that Yadav is an Other Backward Class, as
notified in the Notification in the State of Maharashtra
pertaining to the Other Backward Classes. On issue or point
No.3, the finding in one paragraph is that the petitioner may say
he is a Yadav and he is indeed but that he is Yadav is not
established by him by showing any School records or Revenue
entries. The Revenue entries relied upon by the petitioner are of
the State of Uttar Pradesh and in that the caste is mentioned as
Ahir. Hence, Yadav and Ahir cannot be taken as one and the
same. Therefore, the claim is rejected.
12. It is such an exercise which is under scrutiny before
us.
13. Mr. Mendadkar, appearing on behalf of respondent
No.6 sought to support this conclusion in the order. With all his
persuasive abilities he could not satisfy us that this is a speaking
order. Far from elaborating any conclusion, there are no reasons
and he conceded this position.
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14. The learned Additional GP tried to support this
finding by submitting that the Scrutiny Committee has carried
out its exercise in accordance with law, namely, Maharashtra
Act 23 of 2001 and the Rules framed thereunder. Merely
because this Court holds another view is no ground for
interference with the impugned order.
15. For more reasons than one, we are unable to agree
with Ms Shastri and Mr. Mendadkar. After the Maharashtra Act
23 of 2001 is perused, its substantive provisions indicate that the
law is meant for issuance of Caste Certificate and when the
Caste Certificate is to be issued by the Competent Authority, it
has to satisfy itself, before issuing it, about the genuineness of
the claim and follow the procedure which is prescribed in the
Rules.
16. There is an appellate power conferred in the Scrutiny
Committee in the event Caste Certificate is refused. The term
“Other Backward Classes” is defined in Section 2, Clause (h) of
the Maharashtra Scheduled Castes, Scheduled Tribes,
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DeNotified Tribes ( Vimukta Jatis ), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000 and to
carry the same meaning as is constitutionally accepted, namely,
any Socially and Educationally Backward Classes of citizens as
declared by Government and includes Other Backward Classes
declared by Government of India in relation to the State of
Maharashtra. The word “prescribed” {Section 2(i)} means
prescribed by the Rules. The verification of Caste Certificate by
the Scrutiny Committee is postulated by Section 6 under which,
when a person, in whose favour the Certificate is issued, desires
to avail of educational or employment opportunities or is
desirous of contesting elections to the local bodies, may make an
application to the concerned Scrutiny Committee for verification
of Caste Certificate and issuance of a Validity Certificate. It is in
these circumstances that the petitioner's claim was forwarded for
scrutiny. The Scrutiny Committee had to, therefore, record that
the petitioner before us has raised a false claim or that the Caste
Certificate issued to him is bogus. True it is that by Section 8 the
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burden of proof is on the petitioner/applicant but here he was
issued a Caste Certificate, the genuineness of which was
questioned by the complainants. The Competent Authority, the
Appellate Authority and the Scrutiny Committee while holding
an inquiry have all the powers of a Civil Court while trying a
Suit, and no Suit can be brought in terms of this law in any Civil
Court. It is in these circumstances and the consequences of
cancellation of the Certificate being grave and serious, visiting
him with penalty of forfeiture of the Certificate or any
entitlement in terms thereof and face criminal prosecution, it
was expected of the Committee, in this case, to have assigned
cogent and satisfactory reasons. All the more, when the
Vigilance Cell report was on record. Some of the contents of the
Vigilance Cell report were brought to our notice in addition to
the Certificates issued to the petitioner's father and an attempt
was made to indicate that Ahirs are not Yadavs and Yadavs are
not Ahirs. Both may be rearing up cattle but Yadavs are stated to
be those who rearup cows, buffaloes and therefore deal in milk
products. As far as Ahirs are concerned, they can be equated
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with Dhangars or Mendhpals, that means those rearing up sheep
and goat. These are not, therefore, same classes. However, when
the home inquiry was made in the case of the present petitioner,
several details were obtained therein by the Vigilance Cell. It is
in these circumstances that we are unable to agree with Ms
Shastri and Mr. Mendadkar that the Committee has performed
its statutory duties and functions in accordance with the Rules
and Law. On the other hand, we hold that it has miserably failed
to perform its duty. One paragraph reasoning is no reasoning in
the eyes of law.
17. We, therefore, proceed to quash and set aside the
order under challenge. It is accordingly quashed. We remand the
proceedings back to the Scrutiny Committee for a scrutiny afresh
on merits and in accordance with law, uninfluenced by any
earlier findings and conclusions. We keep open all contentions
of all parties to these proceedings to be raised before the
Committee.
18. A faint attempt is made by Mr. Mendadkar to then
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urge that although such an order of the Scrutiny Committee
challenged in writ jurisdiction is quashed and set aside by us,
the effect of the law cannot be wiped out. In the sense, an
elected representative was obliged to produce the Caste Validity
Certificate from the Competent Scrutiny Committee as he was
contesting a election against the reserved seat. Having failed to
produce the certificate of validity, he must suffer the
consequences. Mr. Mendadkar's argument is that for all this a
time frame is prescribed in law. If within that time frame he fails
to obtain such certificate, his election is quashed and he must
vacate the office.
19. We do not see how we can hold the petitioner
responsible for he forwarded a Caste Certificate within the time
prescribed by law to the Competent Scrutiny Committee and
that Committee had before it the Certificate as also the
complaint of the complainants. It was expected to hold an
inquiry in accordance with law, namely, Maharashtra Act 23 of
2001 as also the Rules framed thereunder. It failed to carry out
its duty and perform its function in law. It passed an order
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which is wholly unsustainable as it fails to comply with the
mandate of law and the principles of natural justice. If such an
order which is ex facie illegal is impugned by the petitioner, he
has not committed any crime. The petitioner was not responsible
for an erroneous order passed by the Committee. The order
which we have quashed and set aside means that there was no
scrutiny at all. If there was no scrutiny at all, there could not
have been Caste Validity Certificate issued or the claim
invalidated. It is in these peculiar circumstances that we are
unable to agree with Mr. Mendadkar that the petitioner must
vacate his office and this should be taken as a failure to produce
the Caste Validity Certificate within the prescribed period. The
cases relied upon and equally the language of the Municipal Act
applies in distinct circumstances. There the Certificate of validity
was not produced and the argument was that the scrutiny is
pending and the candidate is not responsible for the proceedings
before the Committee not concluding expeditiously and that he
has no control over it. The answer to this was that there should
be a clear stipulation in the statute protecting the office of the
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elected representatives in the event the scrutiny is pending or is
not concluded within the prescribed period and the Certificate is
not produced. The language, as it stands, admits of no exception
and is mandatory. That is how the candidate suffers the
consequence for not producing the Certificate of validity in time.
We are unable to agree with Mr. Mendadkar that the instant
case is on par with those cases. Hence, the petitioner has
vacated the office, is not a declaration which we can issue. More
so, when by an interim order passed in this petition, the
implementation and execution of the impugned order was
stayed. In this petition, the petitioner's challenge is to the order
of the Scrutiny Committee on merits.
20. As a result of the above discussion, Rule is made
absolute in the above terms.
21. The proceedings before the Scrutiny Committee are
expedited. The Committee should endeavour and dispose them
of as expeditiously as possible and in any event by 3172018.
22. Mr. Jahagirdar tenders an affidavit which and
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annexes therewith additional documents to buttress and prove
the claim of the petitioner. We do not take that on record but we
permit the petitioner to rely upon these materials before the
Scrutiny Committee in the inquiry by the Scrutiny Committee
which we have directed as above. Any contrary material can
equally be produced by the complainants. Liberty on these lines
is granted.
(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.144 OF 2018
Pankaj Shobhnath Yadav,
Age: 49 years, Occ: Business,
residing at: 301, Sharda Cooperative
Housing Society Limited, Natwar
Nagar, Road No.3, Jogeshwari (E),
Mumbai – 400 060. .... Petitioner
Versus
1. State of Maharashtra
through its Department of Social
Justice & Special Assistance,
Mantralaya, Mumbai400 032.
2. Municipal Corporation of Greater
Mumbai, Mahanagarpalika Marg,
Mumbai – 400 001.
3. The Municipal Commissioner,
The Municipal Corporation of
Greater Mumbai, having his office
at Mahapalika Marg, Mumbai
Pin: 400 001.
4. The District Caste Certificate Scrutiny
Committee, Mumbai Suburban,
Mumbai.
5. Sou. Shilpa Santosh Salvi,,
residing at: Room No.10,
Joshi Chawl, Veer Nilesh Savant
Marg, Bandrekarwadi,
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Jogeshwari (East), Mumbai
Pin: 400 060.
6. Anil Dashrath Mane,
residing at: Room No.5,
Bangar Chawl, Kamgar Kalyan
Bhavan, Gundavali, Andheri (E),
Mumbai – 400 069. .... Respondents
Mr. Y.S. Jahagirdar, Senior Counsel i/by Mr. Pramod
N. Patil for the Petitioner.
Ms Geeta R. Shastri, Addl. Government Pleader, for
Respondent Nos.1 & 4.
Mr. Sagar Patil for Respondent Nos.2 & 3.
Mr. R.K. Mendadkar with Mr. Kamat Gaikwad for
Respondent No.6.
CORAM: S.C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
DATE : MARCH 15, 2018
ORAL JUDGMENT ( Per Shri S.C. DHARMADHIKARI, J. ):
1. Rule. The respondents waive service through their
respective counsel. By consent, rule is made returnable forthwith
and the writ petition is taken up for hearing and final disposal.
2. By this petition under Article 226 of the Constitution
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of India, the petitioner challenges the order of the District Caste
Certificate Scrutiny Committee, Mumbai Suburban, Mumbai,
invalidating the claim of the petitioner as belonging to Other
Backward Class.
3. The order under challenge, dated 1682017, holds
that the petitioner's caste claim, based on the Certificate issued,
now cannot be validated. He will, therefore, have to forgo this
Caste Certificate issued to him. This Caste Certificate, dated
7112016, certifying him as belonging to Yadav, Other
Backward Class is, therefore, cancelled.
4. It is common ground that the petitioner in this
petition is a resident of Mumbai and Citizen of India. The
respondents to this petition include the State, Municipal
Corporation of Greater Mumbai, the Municipal Commissioner,
the District Caste Certificate Scrutiny Committee, Mumbai
Suburban, Mumbai, and respondent Nos.5 and 6 are the original
contestants and to an election. The petitioner in his petition says
that he was desirous of availing the benefits meant for the Other
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Backward Classes in the State of Maharashtra. The Election
Commission declared election programme for the general
elections of the Municipal Corporation of Greater Mumbai.
There are 227 Wards where the elections were scheduled to be
held. The petitioner says that he belongs to Yadav Caste,
recognised as Other Backward Class in the State of Maharashtra.
The Yadav Caste was included in the category of Other
Backward Class in the State of Maharashtra by and under
Government Resolution dated 5101979. Initially, two
Castes/Classes styled as Other Backward Classes Yadav and
Ahir were included in the list of Other Backward Class at Serial
No.198. The claim of the petitioner is that they were taken as
similar or synonymous. Later on, Ahir was deleted from the
Other Backward Class and included in the Nomadic Tribe
category. Subsequently, by a Government Resolution dated
3012014 Ahir has been included again in the Other Backward
Class category at Serial No.198 along with Yadav as similar or
synonymous.
5. Relying upon all this, the petitioner claimed a Caste
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Certificate. On an application made to the Competent Authority,
the Caste Certificate was issued on 7112016, copy of which is
at Annexure “C” to the paperbook.
6. The petitioner contested the elections from Ward
No.72 (KEast). He relied upon his Caste Certificate. He
submitted his application/nomination on 2712017 in the
prescribed Form. After his Nomination was accepted, the
elections followed, in the sense the Nomination was treated as
valid till the date of the poll. After the polling, the results were
declared and the petitioner was declared elected, he having
secured the highest number of votes amongst the contesting
candidates.
7. Then, the petitioner was required to obtain a Caste
Validity Certificate in terms of the legislation, namely, the
Mumbai Municipal Corporation Act, 1888 but amended later on.
Hence, the Certificate on the strength of which the election was
contested by the petitioner and won, came to be forwarded for
scrutiny and verification by the Competent Scrutiny Committee.
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8. The petitioner, as is the demand of that law, was
obliged to prove and substantiate his caste claim. He filed
number of documents, including a Caste Certificate dated
2031980, issued by the Tahsildar, Madiyahu, Jaunpur, Uttar
Pradesh. That Certificate, according to the petitioner, certifies
that his father Shobhnath Rupnath Yadav belongs to Ahir
(Yadav) Caste. Meaning thereby, this was treated as
synonymous to Yadav in the State of Uttar Pradesh at the
relevant time. The petitioner also relied upon a Caste Certificate
dated 2571986, issued by the Tahsildar and Executive
Magistrate, Andheri, Mumbai certifying that the petitioner's
father belongs to Yadav Caste. He also relied upon a Kisan Book
dated 2891995, issued by the Revenue Department,
Government of Uttar Pradesh, Janpad Jaunpur. The documents
and the records were forwarded to a Vigilance Cell. There are
extensive arguments canvassed before us by Mr. Jahagirdar,
learned Senior Counsel, with regard to the constitution of this
Vigilance Cell. He would submit that the Vigilance Cell must
necessarily comprise of a District Superintendent of Police or an
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equivalent level official and who is not expected to merely
append his signature on the report of the Vigilance Cell. He is
not supposed to be leaving the whole inquiry to a Constable or
an Inspector level official. It may be that visits to native places or
villages or remote areas, Schools, Colleges and other places
therein are by the Police Constable or an Inspector level official.
However, their findings are then compiled in a report of the
Vigilance Cell. The Vigilance Cell is comprising of this Deputy
Superintendent of Police or an equivalent level official. He is
expected to verify these findings independently and then append
his signature. He is placed in the Cell not because of his rank but
also because he has the power to supervise and monitor the
working of these officials. Hence, his presence is vital and
crucial. In the instant case, the Vigilance Cell report does not
indicate that it is bearing his signature and with the required
endorsement. Therefore, this report could not have been relied
upon.
9. The findings therein may not be conclusive and
binding on the Committee but surely the Committee cannot call
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upon a Cell like the instant one to hold an inquiry. That is not an
empty formality in the scheme of law. Relying upon the
language of Rule 12 of the Maharashtra Scheduled Castes,
Denotified Tribes ( Vimukta Jatis ), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Rules, 2012,
Mr. Jahagirdar would submit that, that is indicative of the
legislative intent. We cannot ignore the plain words of this Rule
or the statutory prescription and then proceed to accept such
report. In the circumstances, we would be called upon in each of
the matters which are placed today on our board, to decide the
legality and validity of such reports.
10. We at once clarify that this aspect of the matter need
not be gone into in the facts and circumstances of the present
case for Mr. Jahagirdar is on a sound footing as far as the merits
are concerned.
11. Mr. Jahagirdar's criticism in this case is that the
order of the Committee is not a speaking order. There are no
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reasons assigned as to why the Certificates, issued to the father
of the petitioner way back in the year 1980 and 1986, certifying
him as Ahir Yadav, have to be discarded. If they with their
contents have to disbelieved, then, it was incumbent upon the
Committee to have assigned independent, satisfactory and
cogent reasons. Inviting our attention to the order passed in the
instant case, it is urged by Mr. Jahagirdar that in one paragraph
the whole exercise is concluded. A copy of this order is at page
95 of the paperbook, and with his assistance we have perused
it. On pages 96 & 97 are the opening paragraphs. From page 97
onwards till page 102, only pleadings of the parties and
particularly the complainants Shilpa Santosh Salvi and Anil
Dashrath Mane are reproduced. Thus, their grievances are
referred extensively by reproducing the pleadings and what we
find at the end of all this, according to Shri Jahagirdar, are
unnumbered paragraphs where the issues are framed. There is
no finding issue wise but if point or issue Nos.1 & 2 are taken,
according to the Senior Counsel, they do not mean that the
Caste Certificate of the petitioner has been discarded. In the
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sense it is stated that it is issued by a Competent Authority.
Secondly, it is held that Yadav is an Other Backward Class, as
notified in the Notification in the State of Maharashtra
pertaining to the Other Backward Classes. On issue or point
No.3, the finding in one paragraph is that the petitioner may say
he is a Yadav and he is indeed but that he is Yadav is not
established by him by showing any School records or Revenue
entries. The Revenue entries relied upon by the petitioner are of
the State of Uttar Pradesh and in that the caste is mentioned as
Ahir. Hence, Yadav and Ahir cannot be taken as one and the
same. Therefore, the claim is rejected.
12. It is such an exercise which is under scrutiny before
us.
13. Mr. Mendadkar, appearing on behalf of respondent
No.6 sought to support this conclusion in the order. With all his
persuasive abilities he could not satisfy us that this is a speaking
order. Far from elaborating any conclusion, there are no reasons
and he conceded this position.
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14. The learned Additional GP tried to support this
finding by submitting that the Scrutiny Committee has carried
out its exercise in accordance with law, namely, Maharashtra
Act 23 of 2001 and the Rules framed thereunder. Merely
because this Court holds another view is no ground for
interference with the impugned order.
15. For more reasons than one, we are unable to agree
with Ms Shastri and Mr. Mendadkar. After the Maharashtra Act
23 of 2001 is perused, its substantive provisions indicate that the
law is meant for issuance of Caste Certificate and when the
Caste Certificate is to be issued by the Competent Authority, it
has to satisfy itself, before issuing it, about the genuineness of
the claim and follow the procedure which is prescribed in the
Rules.
16. There is an appellate power conferred in the Scrutiny
Committee in the event Caste Certificate is refused. The term
“Other Backward Classes” is defined in Section 2, Clause (h) of
the Maharashtra Scheduled Castes, Scheduled Tribes,
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DeNotified Tribes ( Vimukta Jatis ), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000 and to
carry the same meaning as is constitutionally accepted, namely,
any Socially and Educationally Backward Classes of citizens as
declared by Government and includes Other Backward Classes
declared by Government of India in relation to the State of
Maharashtra. The word “prescribed” {Section 2(i)} means
prescribed by the Rules. The verification of Caste Certificate by
the Scrutiny Committee is postulated by Section 6 under which,
when a person, in whose favour the Certificate is issued, desires
to avail of educational or employment opportunities or is
desirous of contesting elections to the local bodies, may make an
application to the concerned Scrutiny Committee for verification
of Caste Certificate and issuance of a Validity Certificate. It is in
these circumstances that the petitioner's claim was forwarded for
scrutiny. The Scrutiny Committee had to, therefore, record that
the petitioner before us has raised a false claim or that the Caste
Certificate issued to him is bogus. True it is that by Section 8 the
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burden of proof is on the petitioner/applicant but here he was
issued a Caste Certificate, the genuineness of which was
questioned by the complainants. The Competent Authority, the
Appellate Authority and the Scrutiny Committee while holding
an inquiry have all the powers of a Civil Court while trying a
Suit, and no Suit can be brought in terms of this law in any Civil
Court. It is in these circumstances and the consequences of
cancellation of the Certificate being grave and serious, visiting
him with penalty of forfeiture of the Certificate or any
entitlement in terms thereof and face criminal prosecution, it
was expected of the Committee, in this case, to have assigned
cogent and satisfactory reasons. All the more, when the
Vigilance Cell report was on record. Some of the contents of the
Vigilance Cell report were brought to our notice in addition to
the Certificates issued to the petitioner's father and an attempt
was made to indicate that Ahirs are not Yadavs and Yadavs are
not Ahirs. Both may be rearing up cattle but Yadavs are stated to
be those who rearup cows, buffaloes and therefore deal in milk
products. As far as Ahirs are concerned, they can be equated
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with Dhangars or Mendhpals, that means those rearing up sheep
and goat. These are not, therefore, same classes. However, when
the home inquiry was made in the case of the present petitioner,
several details were obtained therein by the Vigilance Cell. It is
in these circumstances that we are unable to agree with Ms
Shastri and Mr. Mendadkar that the Committee has performed
its statutory duties and functions in accordance with the Rules
and Law. On the other hand, we hold that it has miserably failed
to perform its duty. One paragraph reasoning is no reasoning in
the eyes of law.
17. We, therefore, proceed to quash and set aside the
order under challenge. It is accordingly quashed. We remand the
proceedings back to the Scrutiny Committee for a scrutiny afresh
on merits and in accordance with law, uninfluenced by any
earlier findings and conclusions. We keep open all contentions
of all parties to these proceedings to be raised before the
Committee.
18. A faint attempt is made by Mr. Mendadkar to then
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urge that although such an order of the Scrutiny Committee
challenged in writ jurisdiction is quashed and set aside by us,
the effect of the law cannot be wiped out. In the sense, an
elected representative was obliged to produce the Caste Validity
Certificate from the Competent Scrutiny Committee as he was
contesting a election against the reserved seat. Having failed to
produce the certificate of validity, he must suffer the
consequences. Mr. Mendadkar's argument is that for all this a
time frame is prescribed in law. If within that time frame he fails
to obtain such certificate, his election is quashed and he must
vacate the office.
19. We do not see how we can hold the petitioner
responsible for he forwarded a Caste Certificate within the time
prescribed by law to the Competent Scrutiny Committee and
that Committee had before it the Certificate as also the
complaint of the complainants. It was expected to hold an
inquiry in accordance with law, namely, Maharashtra Act 23 of
2001 as also the Rules framed thereunder. It failed to carry out
its duty and perform its function in law. It passed an order
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which is wholly unsustainable as it fails to comply with the
mandate of law and the principles of natural justice. If such an
order which is ex facie illegal is impugned by the petitioner, he
has not committed any crime. The petitioner was not responsible
for an erroneous order passed by the Committee. The order
which we have quashed and set aside means that there was no
scrutiny at all. If there was no scrutiny at all, there could not
have been Caste Validity Certificate issued or the claim
invalidated. It is in these peculiar circumstances that we are
unable to agree with Mr. Mendadkar that the petitioner must
vacate his office and this should be taken as a failure to produce
the Caste Validity Certificate within the prescribed period. The
cases relied upon and equally the language of the Municipal Act
applies in distinct circumstances. There the Certificate of validity
was not produced and the argument was that the scrutiny is
pending and the candidate is not responsible for the proceedings
before the Committee not concluding expeditiously and that he
has no control over it. The answer to this was that there should
be a clear stipulation in the statute protecting the office of the
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elected representatives in the event the scrutiny is pending or is
not concluded within the prescribed period and the Certificate is
not produced. The language, as it stands, admits of no exception
and is mandatory. That is how the candidate suffers the
consequence for not producing the Certificate of validity in time.
We are unable to agree with Mr. Mendadkar that the instant
case is on par with those cases. Hence, the petitioner has
vacated the office, is not a declaration which we can issue. More
so, when by an interim order passed in this petition, the
implementation and execution of the impugned order was
stayed. In this petition, the petitioner's challenge is to the order
of the Scrutiny Committee on merits.
20. As a result of the above discussion, Rule is made
absolute in the above terms.
21. The proceedings before the Scrutiny Committee are
expedited. The Committee should endeavour and dispose them
of as expeditiously as possible and in any event by 3172018.
22. Mr. Jahagirdar tenders an affidavit which and
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annexes therewith additional documents to buttress and prove
the claim of the petitioner. We do not take that on record but we
permit the petitioner to rely upon these materials before the
Scrutiny Committee in the inquiry by the Scrutiny Committee
which we have directed as above. Any contrary material can
equally be produced by the complainants. Liberty on these lines
is granted.
(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)
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