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Judgment
Amit B. Borkar, J
Heard.
Rule. Rule made returnable forthwith.
By this application, the review applicant has sought review of the judgment and order passed by the Division Bench of this Court in Writ Petition No. 566/2019 on 04.03.2020.
The review applicant was the respondent no. 6 in Writ Petition No. 566/2019. The Writ Petition was filed challenging the order validating the claim of the respondent no. 6 as a person belonging to “Jullah” (Other Backward Class). The Division Bench, by the judgment dated 04.03.2020 allowed the Writ Petition and set aside the order dated 12.09.2018 passed by the Caste Scrutiny Committee and also quashed the caste certificate dated 08.06.2011 issued by Deputy Collector, Nagpur. By the said judgment the respondent no. 6 was disqualified from holding post of Corporator and the seat occupied by her was declared as vacant.
The original respondent no. 6 has filed the present review petition raising ground that certificate dated 08.06.2011 is divided into Part-A and Part-B. Part-A is in relation to the issuance of caste certificate to the applicant and Part-B is in relation to issuance of non-creamy layer certificate. It is further alleged that Part-A and Part-B being integral parts of the single document, when the Collector admitted the genuineness of Part-B, it was not upon for the Collector, Nagpur to dispute authenticity of Part-A of the document (Caste Certificate) issued by him.
When the review application came up for consideration before us, this Court on 12.03.2021 issued notices to the respondents and in para no. 3 of the said order observed as under :-
“3. The submission made by learned Advocate for the review applicant that the Non-cremy Layer Certificate is issued only if the claim of the candidate that he belongs to other backward class is accepted and not otherwise, requires consideration. Hence, issue notice to the respondents, returnable on 23rd March 2021.”
Shri Ashish S/o. Ratnakar Bijwal, Deputy Collector, who has been authorized by the Collector, Nagpur has filed affidavit contesting the review application stating in para no. 8 of his affidavit that though the certificate dated 08.06.2011 issued in favour of the review applicant contains Part-A regarding caste certificate but, that does not mean that it is a caste certificate.
The original petitioner has also filed affidavit contesting the review application stating that caste certificate is issued in Form-8 and since the review applicant does not posses caste certificate in Form-8, the order passed by the Division Bench, which is subject matter of the review application is perfectly legal.
We have carefully scrutinized the judgment and order dated 04.03.2020 and replies filed by the original petitioner and the Collector, Nagpur. On careful scrutiny of the material available on record it appears that neither the original petitioner nor the Collector/ Sub-Divisional Officer is in a position to explain as to how Part-A of the certificate dated 08.06.2011 has not been issued by the Sub-Divisional Officer particularly when the collector does not dispute issuance of Part-B of the said certificate. There is no serious dispute amongst the parties about the position of law that unless and until a person belongs to Other Backward Class, non-creamy layer certificate cannot be issued in his favour. Once the Sub-Divisional Officer accepts the issuance of Part-B of the certificate dated 08.06.2011, which is non-creamy layer certificate, prima-facie entire document including Part-A of it needs to be considered as genuine document. The Collector in para no. 8 of the affidavit-in-reply has stated that though Part-A of the certificate relied upon by the review applicant is a caste certificate, that does not mean that it is a caste certificate. We fail to understand significance of the stand adopted by the Collector. The Division Bench, while allowing Writ Petition No. 566/2019 has recorded the statement on oath made on behalf of the Collector stating that there is no caste certificate issued in favour of the petitioner. It was therefore necessary, particularly in view of para no. 3 of the order passed by this Court on 12.03.2021 in review application to explain as to why Part-A of the certificate issued by the Sub-Divisional Officer cannot be taken into consideration when it is undisputed position of law that unless a person belongs to Other Backward Class, non-creamy layer certificate cannot be issued in his favour.
In absence of explanation from the Collector regarding Part-A of the certificate dated 08.06.2011, thereby certifying that the petitioner belongs to Other Backward Class community (Jullah) and genuineness of Part-B which is an integral part of the document, being not in dispute, there is no basis for setting aside the caste validity certificate. With the result, error apparent on the face of record has crept in while passing judgment and order dated 04.03.2020. We are, therefore, satisfied that the review application needs to be allowed and Writ Petition No. 566/2019 is required to be restored to its original file.
We, therefore, pass the following order :-
(i) The judgment passed by this Court on 04.03.2020 in Writ Petition No. 566/2019 is recalled.
(ii) As the applicant- Sayyada Khatoon W/o. Nijamuddin Ansari (original respondent No. 6) came to be disqualified pursuant to the judgment passed by this Court, which is now recalled, it is directed that the applicant- Sayyada Khatoon W/o. Nijamuddin Ansari stands reinstated in the office/post of Corporator from Prabhag 8-B of Nagpur Municipal Corporation forthwith.
(iii) Misc. Civil Application No. 269/2020 seeking review of the judgment is allowed in the above terms.
(iv) Place the Writ Petition before appropriate Bench for consideration on merits.
Rule is made absolute in the above terms.