AI Structured Summary
Not yet generated for this judgment
Judgment
Heard.
Rule. Rule made returnable forthwith by the consent of learned Counsel appearing for the respective parties.
The Petitioners by this Petition challenges the constitutional validity of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for short the “Act of 2000”) and Maharashtra Scheduled Castes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012 (for short the “Rules of 2012”) and also the communications issued to the present Petitioners on various dates i.e. 29.09.2018, 19.12.2018 and 01.01.2019 asking the Petitioners to produce the caste validity certificates.
3(i). The Petitioner No.1 was appointed on 31.03.1997 as Assistant Grade-III (Genl) against the vacancy reserved for Scheduled Tribe. As per the contention of the Petitioner No.1, he belongs to ‘Halba’ Scheduled Tribe and granted with Tribe certificate dated 05.06.1990 by Executive Magistrate, Ahmedabad. The Petitioner No.2 was appointed on 03.04.1997 as Picker as against the vacancy reserved for Scheduled Tribe. He was granted with the certificate showing that he belongs to ‘Halba’ Scheduled Tribe dated 10.11.1995. The Petitioner No.3 was appointed on 31.03.1997 as Assistant Grade-III (Genl) against the vacancy reserved for Scheduled Tribe and granted with the certificate dated 11.11.1991 by the Executive Magistrate, Ahmedabad. The Petitioner No.4 was appointed on 03.04.1997 as Picker against the vacancy reserved for Scheduled Tribe and he was granted with the certificate on 11.06.1990.
3(ii). All the Petitioners were appointed in Food Corporation of India (for short “FCI”) by issuing the appointment letters on the respective dates. As per the contentions of the Petitioners that, there was no condition for caste validity certificate in their appointment letters, only condition was that they have to submit their caste certificates. Accordingly, they have submitted their caste certificates. On completion of probation period, the Petitioner No.1 was confirmed on 06.06.1998, the Petitioner No.2 on 31.12.1999, Petitioner No.3 on 15.04.1998 and Petitioner No.4 on completion of probation promoted on 17.09.2002. Similarly, they were promoted on the higher posts during the tenure of their service.
3(iii). After serving approximately 20 years, the Respondent No.2/General Manager (Region) Food Corporation of India issued the memorandums dated 29.09.2018, 19.12.2018, 01.01.2019, 16.10.2021, 15.11.2021, 04.05.2022, 24.06.2022 and 07.09.2022 asking them to produce the caste validity certificate issued by the Scrutiny Committee. The Petitioners replied the said communications on 05.06.2022 and explained that, the caste certificate issued by the Competent Authority has been already verified through the concerned district Magistrate and, therefore, they shall not be compelled to produce the caste validity certificates. It is further contention of the Petitioners that, they were asked to remain present before the Commissioner, Tribal Development Office and accordingly they were present before the Commissioner Tribal Development Office Ahmedabad on the given dates. The above Tribal Commissioner's Office has communicated that, the Officer/Officials i.e. Petitioners belonged to Maharashtra State and hence their caste verification has to be done from the Maharashtra State. Therefore, they approached to the Caste Scrutiny Committee, Nagpur by filing their applications, however, the Caste Scrutiny Committee returned the said applications on the ground that their certificates are issued by the State of Gujarat and, therefore, they are unable to verify the same.
3(iv). Being aggrieved and dissatisfied with the same, the Petitioners have challenged the validity of various provisions of the Act of 2000 as well as the communications issued to the present Petitioners. They are apprehending that, the Respondent Nos. 1 and 2 may remove them from the service after they have rendered approximately 25 years.
3(v). During pendency of this Petition, these Petitioners have filed the amendment application for adding the Caste Scrutiny Committee, Nagpur as party as well as they have added the contentions in the Petition that, despite the forefathers of the present Petitioners were hailing from Maharashtra and all the documents placed by them shows that they are from Maharashtra. Despite all these documents filed on record, the Scrutiny Committee, Nagpur denied to accept their applications and the applications were returned back on a flimsy reason that the certificates are issued by the State of Gujarat, which is against the policy of the Government and thereby claiming directions to the Caste Scrutiny Committee, Nagpur to verify their caste claim as well as to the Respondent Nos. 1 and 2 not to take any coercive action against them.
Heard Mr. Narnaware, learned Counsel for the Petitioners, who submitted that, though the Petitioners have prayed in the Petition as to the validity of the provisions of the Act of 2000, however, now he has restricted his prayer to the extent of issuance of validity certificate by the District Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur and direction to the Respondent Nos. 1 and 2 not to take any coercive action against the present Petitioners by depriving them from getting the retiral benefits, as all the Petitioners are on the verge of retirement.
4(i). He invited our attention towards the fact that, by considering the peculiar circumstances of the present Petition this Court has already passed an order on 05.12.2022 stating that, the Petitioners to cooperate with the Scrutiny Committee for verification of their tribe claim. The Petitioners to furnish the information and the documents called for by the Scrutiny Committee. The Scrutiny Committee shall be at liberty to pass final order, however, the Respondents shall not act upon it without permission of this Court, either to terminate the Petitioners from service or to reduce them in rank.
4(ii). He submitted that, admittedly, there was no condition in the appointment letters to produce the caste validity certificate. He submitted that, on perusal of the appointment letters issued to the present Petitioners, the only condition was that the Petitioners to produce the caste certificates which they have already produced. He submitted that, there is no dispute that, the Petitioners were granted with the caste certificates by the Executive Magistrate, Ahmedabad but these caste certificates are issued on the basis of various documents produced before the Executive Magistrate showing that they belong to ‘Halba’ Scheduled Tribe.
4(iii). He further invited our attention towards the communications issued by the Respondent Nos. 1 and 2 dated 29.09.2018, 19.12.2018, 01.01.2019, 16.10.2021, 15.11.2021, 04.05.2022, 24.06.2022 and 07.09.2022. He submitted that, by memorandum dated 19.12.2018, the Petitioners were asked to attend the office of Commissioner, Tribal Development Gandhinagar, Ahmedabad on 05.01.2019. By the subsequent communication also, the similar directions were given to the present Petitioners. By communication dated 04.05.2022, the Respondent Nos. 1 and 2 communicated to the present Petitioners that the Commissioner, Tribal Development Office Gandhinagar vide letter dated 18.04.2022 communicated that the Officer/Officials are belonged to Maharashtra State, hence their caste verification has to be done from Maharashtra State and also informed to the Petitioners to upload the caste verification certificate on scrutiny committee website within one month without fail and inform the office at the earliest, otherwise disciplinary action shall be initiated against them.
4(iv). Mr. Narnaware, learned Counsel for the Petitioners submitted that, despite the explanation given by the present Petitioners to the Respondent No.1 that there was no precondition in their appointment letters to furnish the caste validity certificate then also the Petitioners were insisted to place on record the caste validity certificate. He submitted that, as per the directions of the Respondent Nos. 1 and 2, the Petitioners have already appeared before the Commissioner, Tribal Development and produced all the documents. The Commissioner, Tribal Development Office Gandhinagar vide letter dated 18.04.2022 stated that, based on the evidence presented by the said employees, their caste appears to be ‘Halba’ caste. As the ‘Halba’ caste is a caste of the State of Maharashtra, their caste certificates have to be verified from the State of Maharashtra. Hence, they have closed the file. Thus, the Petitioners have cooperated for caste certificate verification process.
4(v). He also invited our attention towards the report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes dated 13.12.2021, which was presented before the House of Parliament and submitted that, the said Committee report discloses that the persons or the employees who are on the verge of retirement or retired, if a certificate has been issued by a competent authority that has not been verified till his retirement due to the absence of records or any other reasons then verification of caste certificate at the fag end of retirement would lead to mental, physical and financial harassment of the retiring person. Moreover at that stage, it is not possible to retrieve salary allowances, LTC and medical facilities etc., extended to them by the Government during their service period of 30-40 years. It is further observed by the said Committee that, it is a grave injustice and atrocity on SC or ST to stress on verification of their caste certificate and denial of retirement benefits after working all his prime young life for an organisation. The last resort in such cases is for the employee to move court which too is a tedious long lasting process. The Committee therefore recommend that the DOPT should frame suitable guidelines in consultation with the State Government, Ministry of Law and Justice to resolve these issues and protecting the interests of these retiring/retired employees.
4(vi). He submitted that, the said report was presented before the Parliament and it was decided that all the pending cases with regard to withholding of pension and pensionary benefits be resolved within two months with an action taken. Report be submitted by all organisations/departments by 24.11.2020 to the Committee positively. He also placed on record the minutes of meeting of the Committee and submitted that, in clause 7 of the said meeting specifically states that, steps should be taken to complete the verification process within a given time-frame, citing the content of relevant circulars of DoPT, the Chairperson stated that if anybody fails to the directives given in the circular, she/he should be liable for action as deem fit under the rules.
4(vii). Thus, he submitted that, the emphasis was on timely verification of the caste claim of the Petitioners. He submitted that, in view of the Committee's report again on 29.03.2023 Office Memorandum was issued to the various departments for timely verification of caste/community certificate and employer was as per the said office memorandum under obligation to forward the caste claims of the employees for verification.
4(viii). He submitted that, here despite various circulars are issued by the Government from time to time, the Respondent Nos. 1 and 2 have not verified the caste claim of the Petitioners at the earlier point of time and now when the Petitioners are on the verge of retirement these communications were issued to the Petitioners stating that either they have to produce the caste validity certificate or they have to face the consequences, which is illegal. He submitted that, Petitioners were asked to run from pillar to post as Tribal Commissioner of Gujarat State stated that, the Office of the Tribal Commissioner unable to verify the tribe claim as the Petitioners are belonging to Maharashtra State, whereas the Caste Scrutiny Committee at Nagpur constituted by the State of Maharashtra returns the proposal by assigning the reasons that as the caste certificates are issued by the State of Gujarat and, therefore, they are unable to verify the claim.
4(ix). He submitted that, considering all these aspects it is the Caste Scrutiny Committee, Nagpur who has to verify the caste claim of the Petitioners considering the forefathers of the present Petitioners are from Maharashtra and merely because the Petitioners migrated for earning their livelihood, is not sufficient to discard the prayer of the present Petitioners for verification.
4(x). In support of his contention, he placed reliance on various decisions of this Court in Dr. Sadique Hussain Sheikh Azim Vs. Divisional Caste Certificate Scrutiny Committee, Nagpur in Writ Petition No. 3368/2010 decided on 09.09.2010 and Dattu s/o Namdev Thakur Vs. State of Maharashtra & Ors., (2012) 1 SCC 549.
Per contra, Mr. Deshpande, learned Counsel for the Respondent Nos. 1 and 2, strongly opposed the said contentions and submitted that, the Petition itself is not maintainable as initially the Petitioners have not added the Caste Scrutiny Committee, Nagpur as a party. The impugned communication issued by the Respondent No.2, wherein the Petitioners were directed to upload the caste verification certificates on the website, in view of the fact that they were appointed on a reserved seats. The caste claims of the present Petitioners were already forwarded by the Respondent Nos. 1 and 2 to the Tribal Commissioner, Ahmedabad Gujarat for verification, however, the office of the Tribal Commissioner shown their inability to verify the same as the caste certificates of the Petitioners belonging to ‘Halba’ caste are from Maharashtra and, therefore, the communication issued by the Commissioner, Tribal Development that these employees i.e. the present Petitioners belonging to ‘Halba’ caste which are native to Maharashtra State and, therefore, they are unable to scrutinize the caste certificates and issue the validity certificate. Thereafter, the Petitioners approached to the Caste Scrutiny Committee, Nagpur but their applications were returned back and in absence of the caste verification certificate, the Respondent Nos. 1 and 2 are unable to continue them in their service and, therefore, the communication was issued to the present Petitioners either to produce the caste validity certificates otherwise they have to face the departmental enquiry.
5(i). He submitted that, in view of the decision of the Hon'ble Apex Court in the case of Kumari Madhuri Patil & Ors. Vs. Addl. Commissioner, Tribal Development & Ors., MANU/SC/0022/1995, the production of the caste validity certificate is mandatory and, therefore, the Petition deserves to be dismissed.
Mr. Chutke, learned AGP appearing for the Respondent No.3/Committee submitted that, as the caste certificates issued to the Petitioners are from Gujarat by Executive Magistrate, Ahmedabad Gujarat and, therefore, the Caste Scrutiny Committee, Nagpur is unable to verify their caste claims and, therefore, the same are rightly returned by the Committee. In view of that, the Petition deserves to be dismissed.
6(i). Learned AGP for the Respondent No.3/Committee also placed reliance on the decision of Rajendra s/o Shivram Thakur Vs. State of Maharashtra & Ors., 2019(4) Mh.L.J. 721.
The undisputed facts are that, the forefathers of the Petitioners were the resident of Maharashtra. Parents of the Petitioners migrated from Maharashtra to Gujarat for earning their livelihood. The Petitioners studied in various Schools at Gujarat. The School Leaving Certificate of Petitioner No.1 shows that he has firstly attended M.S.M. High School, Bhadra, Ahmedabad and thereafter continued in the same School for his higher secondary education. Similarly, Petitioner No.3 studied in Vidyanagar Higher Secondary School and Petitioner No.4 studied in Sheth Chatarbhuj Lajpatrai Hindi High School, Ahmedabad, whereas Petitioner No.2 studied in Lavna Vidyalaya, Ahmedabad. The School Leaving Certificate of father of the Petitioner No.2 shows that, he studied in Jan Jagruti Prathmik School, Pachpaoli Road, Lashkaribagh, Nagpur. His admission in the School was on 01.07.1956 and studied upto 30.04.1960. The birth date was 01.04.1950 and while admitting him in School he was recorded as ‘Halba’.
It is the further undisputed facts that, the Petitioners are appointed in Food Corporation of India, Rajkot at various dates, which are already mentioned earlier. On perusal of the appointment letters, admittedly, there was no condition to place or furnish the caste validity certificate. The only condition was to furnish the caste certificate. The caste certificates which are on record disclose that, the Petitioner No. 1 was granted with the caste certificate on 05.06.1990 by the Executive Magistrate, Ahmedabad. It reveals that, the said caste certificate was issued by the State Authority on the basis of the School Leaving Certificate issued by the School. The caste certificate of Petitioner No.3 was granted on 11.11.1991, the same was also issued on the basis of School Leaving Certificate. The caste certificate of Petitioner No.4 was granted on 11.06.1990 on the basis of School Leaving Certificate and the caste certificate of Petitioner No.2 was issued on 10.11.1995 on the basis of the School Leaving Certificate and the School Leaving Certificate of his father.
Undisputedly, the Respondent Nos. 1 and 2 promoted all these Petitioners on higher post. They have served more than 20 years and after 20 years the communication was issued to them asking them to furnish the caste validity certificate. The memorandums were issued to the Petitioners initially on 29.09.2018 and thereafter on various occasions. The Petitioners were also asked to appear before the Commissioner, Tribal Development Office, Gandhinagar alongwith the documents. On 04.05.2022 by the communication the Respondent Nos. 1 and 2 communicated to the present Petitioners that the Commissioner, Tribal Development Office, Gandhinagar by letter dated 18.04.2022 communicated that the officer/officials i.e. the Petitioners belonging to Maharashtra State hence their caste verification has to be done from Maharashtra State and thereby directed the Petitioners to upload caste verification certificate on scrutiny committee website within one month.
Thus, the communication specifically states that, the Petitioners belong to Maharashtra State and, therefore, their caste verification has to be done from the Maharashtra State. The Petitioners have explained after receipt of the said communication that, they are belonging to Maharashtra State and there was no condition to produce the validity certificate in their appointment letters. It is further contended by the Petitioners that, Scheduled Tribe certificate is issued to them after verification. It is further contended by them in the explanation that, in Letter No. 18.04.2022, Vibhagya Vishletion Samiti, Commissioner, Tribal Development Office Gandhinagar, wherein it is specifically mentioned that, the evidence presented by the said employees, their caste appears to be ‘Halba’ caste. As the ‘Halba’ caste is a caste of the State of Maharashtra, their caste certificates have to be verified from the State of Maharashtra. Hence, they have closed their files for verification purposes.
Despite the said communication they were insisted to produce the validity certificate. Therefore, they approached to the Scheduled Tribe Caste Scrutiny Committee, Nagpur, however, their proposal for verification was returned on the ground that the certificates obtained by them are from Gujarat State and, therefore, the Committee cannot verify the same.
Before entering into the merits of the case, it is necessary to see the various Government Notifications issued on various occasions by the Government of India. The Government of India, Ministry of Home Affairs, New Delhi dated 22.02.1985 communicated to the Chief Secretaries of All State Governments and U.T. Administrations on a subject of issuance of Scheduled Caste/Scheduled Tribe certificate to migrants from other States/Union Territories. By this communication it was directed that,
“it has been represented to this Ministry that persons belonging to Scheduled Castes/Scheduled Tribes who have migrated from one State to another for the purpose of employment, education, etc. experience great difficulty in obtaining caste/tribe certificate from the State from which they have migrated. In order to remove this difficulty, it has been decided to modify the instructions issued in letter No. 12025/2/76-SCT.I dated 22.03.1977 and letter No. 12015/11/79-SC&BCD-I/IV dated 29.03.1982 that the prescribed authority of a State Government/Union Territory Administration may issue the Scheduled Caste/Tribe certificate to a person who has migrated from another State, on the production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. This facility does not alter the Scheduled Caste/Scheduled Tribe status of the person in relation to the one or the other State. The revised form of the Scheduled Caste/Tribe certificate has already been circulated with this Ministry's letter of even number dated 06.08.1984. It is also clarified that a Scheduled Caste/tribe persons who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated.”
Thus, by this communication it was clarified by the Government of India that, if a person who belongs to Scheduled Caste/tribe migrated to another State and on the production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin, issue the caste or tribe certificate, which is done in the present case by the Executive Magistrate, Ahmedabad.
The subsequent communication by the Ministry of Social justice & Empowerment dated 01.08.2017 shows that, to clarify the ambiguity the another communication was issued stating that,
“In order to remove the difficulty faced by persons belonging to Scheduled Castes (SCs) and Scheduled Tribes (STs), who have migrated from one State/ Union Territory (UT) to another, in obtaining caste certificate from the State/ UT to which they have migrated, it had been clarified to all State Governments and UT Administrations, vide Ministry of Home Affairs letters dated 18.11.1982 and 06.08.1984, that the prescribed authority of a State Government/ UT Administration may issue the SC/ ST certificate to a person who has migrated from another State/UT, on the production of a genuine certificate issued to his father/ mother by the prescribed authority of the State/ UT of the father's/mother's origin, except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the caste in question is scheduled or not in relation to the State/ UT to which the person has migrated.”
The another Government Resolution issued by the Government of India Ministry of Social Justice and Empowerment Department of Social Justice and Empowerment dated 22.02.2018, which was addressed to the Chief Secretaries to all State Governments/Union Territory Administrations on the subject of the “instructions on issue of Scheduled Caste Certificate to migrants from other States/Union Territories”. By this communication it was directed to all the Chief Secretaries to refer to Ministry of Home Affairs letters dated 06.08.1984 & 22.02.1985 by which all State Governments/Union Territory Administrations were requested that the prescribed authority of a State Government/Union Territory Administration may issue the Scheduled Caste/Tribe certificate to a person who has migrated from another State, on the production of the genuine certificate issued to his/her father by the prescribed authority of the State of the father's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. It was clarified that, the Scheduled Caste/Scheduled Tribe person on migration from the State of his/her origin to another State will not lose his/her status as Scheduled Caste/Scheduled Tribes but he/she will be entitled to the concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his/her origin and not from the State where he/she has been migrated. It was further clarified that, the inter-State/UT Scheduled Caste migrant will be deemed to be a Scheduled Caste of the State/UT of his/her origin and will be entitled to derive benefits from the State/UT of origin and not from the State /UT to which he/she has migrated. However, a member of a Scheduled Caste would be entitled for all benefits /concessions of Central Government irrespective of his/her State/ UT of origin.
In the light of the above directions already issued by the Government of India, it is apparent that, the Executive Magistrate, Gujarat has issued the certificates on the basis of the documents which are produced by the Petitioners before the concerned Executive Magistrate at the relevant time.
Mr. Narnaware, learned Counsel for the Petitioners, also invited our attention towards the report of the Committee which was constituted by the Welfare of Scheduled Castes and Scheduled Tribes. The subject matter of the said Committee was “Study of atrocity cases against Scheduled Castes and Scheduled Tribes with respect to implementation of the Prevention of Atrocities Act, 1989 with special reference to cases related to withholding of pensions and retirement benefits of SC/ST Employees.”
He has pointed out from para (ix) of the said report that, the said report clarifies regarding the caste verification of the employees who were near to retirement or retired, which is reproduced as under:
“(ix)For those nearing retirement or retired, if a certificate has been issued by a competent authority that has not been verified till his retirement due to the absence of records or any other reasons then verification of caste certificate at the fag end of retirement would lead to mental, physical and financial harassment of the retiring person. Moreover at that stage, it is not possible to retrieve salary allowances, LTC and medical facilities etc. extended to them by the Government during their service period of 30-40 years. In such a scenario, the Committee feel that it's a grave injustice and atrocity on SC or ST to stress on verification of their caste certificate and denial of retirement benefits after working all his prime young life for an organisation. The last resort in such cases is for the employee to move court which too is a tedious long lasting process. The Committee therefore recommend that the DoPT should frame suitable guidelines in consultation with the State Government, Ministry of Law and Justice to resolve these issues and protecting the interests of these retiring/retired employees.”
Thus, he submitted that, this report itself clarifies that if the caste claim of the persons were not verified at the earlier stage of service then on the verge of retirement their caste claims are not required to be forwarded for verification and their pensionary benefits are not required to be stalled. He submitted that, all the Petitioners are on the verge of retirement.
He also invited our attention towards the Office Memorandum issued by the Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel and Training dated 29.03.2023, wherein the timely verification of caste/community certificate was emphasized. In para 6 of the said communication it is specifically stated that,
“all the Ministries/ Departments, including their attached, subordinate offices, PSUs, Autonomous Bodies etc., are requested to ensure that process for verification of the caste certificate of the employee may be initiated immediately and a communication may be issued to the concerned State/ UT Authorities within a week of joining of government service by the employee. As already stated above, the State/UT Authorities have been requested from time to time to verify the caste/community certificate of the candidates/employees and report the same to the appointing authority within one month of receipt of request from such appointing authority. Hence, if no report is received from the concerned State/UT Authorities within a period of one month, the matter may be taken up at the highest level and it may be ensured that the process for verification of the caste/tribe/community certificate of the employee is completed within a period of six months of her/his joining the service.”
Thus, he submitted that, though this communication was issued on 29.03.2023 but the letter itself shows that there were earlier communications to the various Ministries/Departments, subordinate offices, PSUs, Autonomous Bodies directing to verify the caste status of the employees at the earlier stage.
Here in the present case, admittedly, after 18 to 20 years of service the caste claims of the present Petitioners were referred for verification by the Respondent Nos. 1 and 2, though there was no condition in the appointment order regarding furnishing of the validity certificate.
Thus, the entire record undisputedly shows that, the Petitioners though belonging from the Maharashtra State but in view of various Government Notifications they have obtained the caste certificates from the Executive Magistrate, Gujarat on the basis of the documents which they have produced before the Authorities. The Commissioner, Tribal Development in specific words communicated to the Respondent Nos. 1 and 2 as the Petitioners belong from Maharashtra State and, therefore, the Committee at Gujarat is unable to verify the said caste claims and, therefore, the Petitioners have preferred the applications before the Caste Scrutiny Committee, Nagpur for verification of their caste claims.
Section 6 of the Act of 2000 deals with Verification of Caste Certificate by Scrutiny Committee, which is reproduced as under:
“6.Verification of Caste Certificate by Scrutiny Committee.
(1)The Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees.
(2)After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate.
(3)The appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions who has not obtain such certificate.
(4)The Scrutiny Committee shall follow such procedure for verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed.”
This provision sets up the forum for verification of caste certificates issued by Competent Authorities under the Act. Sub-sections (2) & (3) then provide for the persons who can invoke the forum for verification of caste certificates. Sub-section (2) provides that any person after obtaining a caste certificate and desirous of availing the benefits or concessions provided to various categories in any public employment or admission to any educational institution or any other benefit under any special provision made under Clause 4 of Article 15 of the Constitution of India or for the purpose of contesting an elective post in any local authority or a cooperative society or for purchase of transfer of land from a tribal landholder or for any other purpose specified by the Government vide Section 3 may make an application to the concerned Scrutiny Committee for the verification of such a caste certificate and for the issue of a validity certificate.
Sub-section (3) provides that the appointing authority must make an application to the Scrutiny Committee for the verification of the caste certificate and issue of a validity certificate where a person who has been selected for appointment has not obtained such a certificate. The Legislature by enacting Sub-sections (2) and (3) has ensured that the caste certificate of any person availing of a benefit or concession provided to the Scheduled Caste, Scheduled Tribes, De-notified Tribes, Vimukta Jatis, Nomadic Tribes, Other Backward Classes or Special Backward Class, who has obtained a caste certificate is scrutinized by a Scrutiny Committee established for the purpose of Sub-section (1) of the Act. In relation to matters of employment, the Legislature has ensured that caste certificate of a person who has availed of these benefits but has not submitted his certificate for such scrutiny, does not escape such scrutiny upon his selection for appointment by casting a duty on the appointing authority to make an application to the concerned Scrutiny Committee for the verification of the caste certificate of such a person if he has not obtained such a certificate. There is notable difference in the language employed by the two Sub-sections. Sub-section (2) states that such a person desirous of obtaining benefits “may make an application”, whereas Sub-section (3) states that the appointing authority who selects such a person for appointment “shall make an application”.
Thus, the purpose of the legislation which is to ensure that the benefits and concessions made available to Scheduled Castes, Scheduled Tribes, etc. are not availed of by others who do not belong to such categories and to curb the misuse, there is no doubt that the Sub-section (2) must be read as conferring on the appointing authority a power coupled with a duty to exercise it. The legal and the factual context in which such a power is to be exercised combines the power with an obligation to exercise it. Such a power has been described in Julius Vs. Lord Bishop of Oxford, (1880) 5 App Cas 214 at 222-223, quoted with approval therewith by the Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, (1952) SCR 135 at 147: (AIR 1952 SC 16 at p.21) thus:
“There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.”
In view of above we are of the view that, Sub-section (3) of Section 6 confers on the appointing authority a power coupled with a duty to make an application to the concerned Scrutiny Committee for validation of the caste certificate of a person selected for appointment where such a person has not obtained such a validity certificate. It is not open for the appointing authority to avoid the step of referring such a caste certificate for verification to the Scrutiny Committee and issue a show-cause notice for taking action against an employee on the basis that the candidate does not belong to a Scheduled Caste, etc., howsoever justified the appointing authority may be in entertaining a doubt about the genuineness of a caste certificate.
Thus, there is no dispute that, the Petitioners who belong from Maharashtra State were migrants. However, they were not migrants in the State of Maharashtra. They can be treated as migrants in the State of Gujarat. By relying upon Rule 14 of the Rules of 2012, the Committee returned the proposal by stating that, Rule 14 prohibits the Scrutiny Committee from verifying such caste certificates issued by the Authorities beyond the State of Maharashtra. Consequently, they have denied to verify the caste claims of the Petitioners.
The question whether an applicant is an ordinarily resident of area within the territorial jurisdiction of the Competent Authority on the deemed date as required by Rule 5(1) of the Rules of 2012 is a question of fact which is required to be adjudicated by granting the applicant necessary opportunity to prove the same. The Petitioners claimed to be of ‘Halba’ Scheduled Tribe, which was included by the Constitutional Order 1950 part IX at serial No.19.
Rule 5 of the Rules of 2012 deals with the Procedure to be followed by Competent Authority for issuance or rejection of Caste Certificate. Sub Rule 1 of Rule 5 states that, the Competent Authority may issue Caste Certificate to an applicant who himself or whose father or grandfather or great grandfather or relative was ordinarily residing within the area of territorial jurisdiction of that Competent Authority on deemed date. Thus, the Competent Authority is required to determine whether the applicant is an ordinarily resident of area within the territorial jurisdiction of the Competent Authority on the deemed date which is a question of fact by giving an opportunity to the Petitioners to prove the same.
We have already referred the documents, on the basis of which the caste certificates were issued to the Petitioners. On perusal of the School Leaving Certificate of the father of Petitioner No.2/Rajesh namely Babu Nathu Sonkusare shows that, he was admitted in School on 01.07.1956 and was studying in the School Jan Jagruti Primary School, Lashkaribagh, Nagpur till 30.04.1960 and his birth date was 01.04.1950. Thus, it is apparent that, on the deemed date the father of the Petitioner No.2 was within the territorial jurisdiction of the Competent Authority i.e. the State of Maharashtra Nagpur Committee. The finding that, the applicant was not an ordinarily resident on a deemed date cannot be recorded by taking a summary enquiry.
This aspect is also considered by this Court in Badalsingh Bharosa Rawale Vs. Divisional Caste Certificate Scrutiny Committee No.3, Nagpur and another [2016(1) Mh.L.J.77] and observed that, the aspect has to be decided by permitting the claimant to tender evidence in that regard.
Thus, in the present case without giving an opportunity to the Petitioners to demonstrate that they or their forefathers were residing in the State of Maharashtra prior to 1950, the proposal of their validity was returned back by the Committee. Admittedly, there was no enquiry conducted by the Vigilance Cell and the Scrutiny Committee has merely considered the fact that they were granted the certificates in the State of Gujarat ignoring the fact that the Commissioner, Tribal Development has already communicated to them that all the documents on which the Petitioners relied upon shows that they were the residents of Maharashtra and shown its inability to validate the caste claims of the Petitioners. Thus, it was clear that, the Petitioners were the migrants in the State of Gujarat after 1950.
As observed earlier by the Division Bench of this Court in Badalsingh Bharosa Rawale (supra), the Scrutiny Committee was under an obligation to give an opportunity to the Petitioner to demonstrate that their forefathers were residing in the State of Maharashtra prior to 1950.
Learned AGP for the Respondent No.3/Committee, vehemently submitted that, Rule 14 of the Rules of 2012 prohibits the Caste Scrutiny Committee to verify the caste claim of the Petitioners. Insofar as Rule 14 of the Rules of 2012 deals with the verification of caste certificate and states that, “Any person desirous of availing of the benefits and concessions provided to the Scheduled Caste, Scheduled Caste converts to Buddhism, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Categories for any of the purposes as mentioned in section 3 of the Act shall, invariably submit an application in FORM-16 with an affidavit in FORM 3 and FORM-17 for students; FORM-18 with an affidavit in FORM 3 and FORM-19 for employees or service purpose; FORM-20 with an affidavit in FORM 3 and FORM-21 for election purpose; or FORM-22 with an affidavit in FORM 3 and FORM-23 for other purpose, as per his requirement, to the concerned Scrutiny Committee for verification of his caste claim and issue of Caste Validity Certificate, well in time :
Provided that, the Caste Certificate issued to migrant from other State and Caste or Community Certificates issued by Authorities of the States other than the State of Maharashtra, shall not be verified by such Caste Scrutiny Committee.”
This aspect is also considered by the Division Bench of this Court in Writ Petition No. 919/2020 (Ku. Priyanka d/o Nagesh Erla Vs. District Caste Certificate Scrutiny Committee, Chandrapur & Anr.) decided on 30.08.2022 and in para 7 it is held that, “Insofar as Rule 14 of the Rules of 2012 is concerned, the same prohibits verification of caste certificate by the Scrutiny Committee when such caste certificate is issued to a migrant from another State. In other words, a caste certificate issued to a claimant by an Authority other than one from the State of Maharashtra cannot be verified. Thus, even for relying upon Rule 14 of the Rules of 2012 it would have to be first conclusively established that the claimant seeking verification is a migrant from another State and hence such verification is not possible. Rule 14 has been relied upon pursuant to a summary enquiry which would not be permissible. It is to be borne in mind that the conclusion recorded by the Scrutiny Committee that the claimants have obtained caste certificate from other state, hence can not be verified has multiple consequences. Such conclusion is likely to affect the academic as well as service prospects of such claimant and hence it is necessary that before such finding is recorded, the procedure prescribed by the Rules of 2012 in the matter of verification of caste/tribe claim is complied with.”
The decision of this Court in Niraj Kamlakar More Vs. Scheduled Tribe Certificate Scrutiny Committee, Aurangabad, [2012 (5) Mh.L.J.367], is required to be noted. After considering the provisions of Sections 4, 6 and 7 of the Act of 2000, it was held that a caste certificate issued by the Competent Authority in accordance with Section 4(1) of the Act of 2000 is valid only when a validity certificate is granted by the Scrutiny Committee. Under Section 7(1) of the Act of 2000 the power of cancellation and confiscation of a caste certificate can be exercised only if the Caste Scrutiny Committee is of the opinion that the caste certificate was obtained fraudulently. The aforesaid legal position is also to be kept in mind before a caste certificate is sought to be cancelled.
Here the State of Gujarat has issued the said certificates to the Petitioners on the basis of the documents produced by the Petitioners. In view of communication issued by the Commissioner, Tribal Development that the Petitioners belong to State of Maharashtra and, therefore, their caste claim is to be verified from the State of Maharashtra and, therefore, they have approached the Respondent No.3/Committee.
As already observed that, whether the Petitioners are resident or their forefathers are resident of Maharashtra or not is to be decided by permitting the Petitioners to tender their evidence in that regard. Returning the proposal or rejecting the proposal summarily without conducting any enquiry is bad in law. During the vigilance merely on the basis that the caste certificates issued by the other State summarily is bad in law and against the natural justice.
Considering the peculiar circumstances in the present case, this Court at the time of admission directed the Petitioners to cooperate with the Scrutiny Committee for verification of their tribe claim. The Petitioners to furnish the information and the documents called for by the Scrutiny Committee. The Scrutiny Committee shall be at liberty to pass final order, however, the Respondents shall not act upon it without permission of this Court, either to terminate the Petitioners from service or to reduce them in rank. Despite the said order is passed, the Committee returned the proposal of the Petitioners without adhering to the order passed by this Court and, therefore, the direction is required to be given to the Scrutiny Committee i.e. Respondent No.3 to accept the proposal of the present Petitioners and by giving them an opportunity to adduce the evidence in support of their claim that they are resident of Maharashtra and decide the aspect of granting validity certificates to the Petitioners. The Committee can also frame a preliminary issue in that regard.
Mr. Deshpande, learned Counsel for the Respondent Nos. 1 and 2, vehemently submitted that, in view of the communications issued by the Respondent Nos. 1 and 2 within four years no validity certificate is furnished by the Petitioners, now they are on the verge of their retirement and, therefore the departmental enquiry is required to be initiated against the present Petitioners. Admittedly, in view of the Office Memorandum of Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel and Training dated 29.03.2023, directions were issued to various departments for timely verification of caste/community certificate. By this communication it was emphasized that all the Ministries/ Departments, including their attached, subordinate offices, PSUs, Autonomous Bodies etc., are requested to ensure that process for verification of the caste certificate of the employee may be initiated immediately and a communication may be issued to the concerned State/ UT Authorities within a week of joining of government service by the employee.
Admittedly, in the present case there was no action on the part of the Respondent Nos. 1 and 2 for timely verification of the caste claim of the present Petitioners.
The report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes dated 13.12.2021, which was presented before the House of Parliament recommended that the employees who are on the verge of retirement or retired, if a certificate has been issued by a competent authority which has not been verified till his retirement due to the absence of records or any other reasons then verification of caste certificate at the fag end of retirement would lead to mental, physical and financial harassment of the retiring person.
Now, the Petitioners are on the verge of retirement. Even accepting the contention that, the Petitioners have not submitted the validity certificates, the circumstances under which the said validity certificates were not produced is already discussed. The apprehension of the Petitioners that, their pensionary benefits would be withheld by the Respondent Nos. 1 and 2. It is well settled that, such action can be taken only if a disciplinary proceeding is issued against the employee.
The Hon'ble Apex Court in the case of Union of India Vs. K. V. Jankiraman, AIR 1991 SC 2010 has observed that “it is only when a charge-memo in a disciplinary proceedings is issued to the employee it can be said that the departmental proceedings is initiated against the employee. In the case in hand, only show cause notice is issued on the date of his retirement calling upon the petitioner to explain why departmental action should not be initiated for failure to submit the validity certificate. Mere issuance of such show cause notice would not amount to initiation of the departmental enquiry.”
Thus, the Hon'ble Apex Court clarified that, the Gratuity and pensionary benefits can be withheld only if the departmental or judicial proceedings are instituted against the said person. Here the Petitioners were promoted from time to time and now they are on the verge of their retirement. Admittedly, as observed earlier there was no departmental or judicial proceedings pending against the present Petitioners. Therefore, the question of withholding of the pensionary benefits does not arise.
In the case of Dr. Dipak Vishwanathrao Muley Vs. State of Maharashtra Through its Secretary, Higher Education Department and Ors. reported in 2022 SCC Online Bom 114, wherein it has observed in paragraph Nos.52, 53 and 54 as under :
“52.Rule 27(6) as set out above unequivocally states that for the purpose of Rule 27, the departmental proceedings shall be deemed to be instituted on the date on which the Statement of Charges is issued to the pensioner. In this case, the Articles of Charges dated 28th August 2018 were issued to the Petitioner on 29th August, 2018 which is after the date with effect from which Petitioner had superannuated.
53.The decision in the case of Janakiraman (supra) relied upon by Petitioner lends credibility to this view. In the case of Jankiraman (supra) the Hon'ble Supreme Court was called upon to answer the question as to the date from which it could be said that disciplinary/criminal proceedings are pending against an employee. The Hon'ble Supreme Court affirmed the view of the full bench of the tribunal that it is only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. Paragraph-16 of the said decision is relevant and is quoted as under :
"16.On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other.
54.The decision of the Hon'ble Supreme Court in the case of Rajinder Lal Capoor (Supra) also supports the aforesaid view. Not only that it also lays down that departmental proceeding is not initiated merely by issuance of a show cause notice, it is initiated only when a chargesheet is issued Paragraphs 21 and 22 of the said decision are relevant and are quoted as under:-
21.The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a showcause notice. It is initiated only when a charge-sheet is issued (See Union of India v. K.V. Jankiraman). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. v. Saroj Kumar Mishra wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a chargesheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :
"12[13]. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
13[14]. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."
It was further more observed that :
"18[20]. A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued."
(See also Union of India v. Sangram Keshari Nayak (2007) 6 SCC 704 : (2007) 6 Scale 348 )
22.The Respondent, therefore, having been allowed to superannuate, only a proceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the charge-sheet, the enquiry report and the orders of punishment passed by the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction".”
It is not the case of the Respondent Nos. 1 and 2 that, the time of entry in service the Petitioners either placed on record the false certificate or obtained certificate by playing fraud. Therefore, in view of the decision of the Hon'ble Apex Court in the case of Chairman and Managing Director, Food Corporation of India & Ors. Vs. Jagdish Balaram Bahira & Ors. [(2017) 8 SCC 670], wherein it is observed that, “Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise.”
Thus, the withdrawal of benefits can be done in the case of invalidation of the caste claim. Therefore, this would also not helpful to the Respondent Nos. 1 and 2 to initiate the action of withholding the pension of the present Petitioners.
In the judgment of Kumari Madhuri Patil & Ors. Vs. Addl. Commissioner, Tribal Development & Ors., MANU/SC/0022/1995, wherein the Hon'ble Apex Court streamlined the procedure for the issuance of social status certificates, their scrutiny and their approval, which are as under:
“1.The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2.The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3.Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4.All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5.Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6.The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Addl. Secretary as Chair-person who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7.In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8.Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9.The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10.In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11.The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12.No suit or other proceedings before any other authority should lie.
13.The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14.In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15.As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.”
The Hon'ble Apex Court also considered that, the School record, comparatively, is not only oldest but it being the record pertaining to candidate's father's admission to school prior to independence, it carries greatest probative evidentiary value. It is further held that, the caste of the person, as stated earlier, is determined on the basis of the caste of their parents, basically for the reasons that the caste is acquired by birth.
The Hon'ble Apex Court further held in para 10 that, the entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. It is further observed that, the Union of India and the State Governments have prescribed the procedure and have entrusted duty and responsibility to Revenue Officers of gazetted cadre to issue social status certificate, after due verification. It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status.
As already observed that, no departmental proceedings were held against the present Petitioners till today and, therefore, the Respondent Nos. 1 and 2 cannot deprive the Petitioners from getting their retiral benefits. The apprehension raised by the Petitioners appears to be on sound footing that now the memorandums are already issued to the Petitioners stating that they have to either produce the validity certificates otherwise disciplinary action will be initiated against them. As already observed that, their caste claim is not invalidated by any Committee.
The issue is who has to verify the caste claim, we have already directed the Respondent No.3/Committee to consider the applications for verification and we also direct the Respondent Nos. 1 and 2 not to withhold the pensionary benefits of the present Petitioners for want of validity certificates on their retirement.
In view of above discussion, the Writ Petition deserves to be allowed. Accordingly, we proceed to pass the following order.
O R D E R
Writ Petition is allowed.
The Respondent No.3/Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur, shall permit the present Petitioners to file their applications online for verification and shall decide the same expeditiously within a period of one year after giving them an opportunity to adduce the evidence in support of their caste claim.
The Respondent Nos. 1 and 2 shall not withhold the retirement benefits of the present Petitioners.
Rule is made absolute in the aforesaid terms.
Pending application/s, if any, shall stand disposed of accordingly.