Dist. Collector Satara & Anr. v. Mangesh Nivrutti Kashid
SANJAY KISHAN KAUL, J.
1. The freedom at midnight was followed by the framing of the
Indian Constitution. The Constitution of India (for short ‘the
Constitution’) took special care, given the social and economic scenario
of our country, to provide for certain special benefits and privileges for
persons from the under-privileged communities, i.e., th e Scheduled
Castes (for short ‘SCs’) and the Scheduled Tribes (for s hort ‘STs’).
Thus, while prohibiting discrimination on grounds inter alia of race and
caste, under Article 15 of the Constitution, while providing for equality
of opportunity in matters of public employment under Article 16 of the
Constitution, an enabling provision was made for providing reservation
to people of these categories. In fact, Article 17, abolishing
untouchability, was one more provision in this direction.
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID
2. In the implementation of the aforesaid objectives, it b ecame
necessary to issue caste certificates for obtaining em ployment and
admission to educational institutions. Unfortunately, this gave rise to vast
area of malpractice as non-entitled persons managed to ob tain such
certificates for availing the benefits. This endemic pro blem forms the
basis for the jurisprudential discussion in Kumari Madhuri Patil & Anr.
v. Additional Commissioner, Tribal Development & Ors 1(Kumari
Madhuri Patil) .
3. The facts in Kumari Madhuri Patil 2 case itself are an
illustration of this problem. The appellant before the Court was seeking
a Caste Certificate on the basis of a Caste Certificat e obtained by her
sister, who was claiming on the basis of their father having o btained
caste certificate, certifying him to be of ‘Hindu K oli’ caste. On
investigation, the caste claims were found to be wr ong and the
certificates issued to the appellant therein and her sister were cancelled.
This Court in the Kumari Madhuri Patil 3 case, while discussing the
various provisions of the Constitution, emphasised that the State was
enjoined under our constitutional scheme to provide facilities and
opportunities to the SCs and STs for education and employment, so as
to result in economic improvement, resulting in excellence, equality of
status and the right to live in dignity. Thus, any admission wrongly gained,
or employment wrongly obtained, on the basis of a false social status
certificate automatically has the effect of depriving a genu ine person
for whose benefit the rights have been conferred under the Constitution.
Simultaneously, in view of the reservation, a General Category candidate
loses the seat to an ineligible candidate, who really does not belong to
the SC/ST community. No proper procedure or legislation provided for
the checks and balances in issuance of these caste certi ficates and,
thus, in the Kumari Madhuri Patil 4 case, it was deemed necessary
to issue directions to streamline the procedure for issuance of the social
status certificates. There were fifteen (15) directions i ssued, but the
two directions, which are relevant for the controversy rai sed in the
present appeals, are as under:
“4. All the State Governments shall constitute a Committ ee of
three officers, namely, (I) an Additional or Joint Secretary or any
1 (1994) 6 SCC 241
2 (supra)
3 (supra)
4 (supra)
693
officer higher in rank of the Director of the depar tment
concerned, (II) the Director, Social Welfare/Tribal Welfare/
Backward Class Welfare, as the case may be, and (III) i n the
case of Scheduled Castes another officer who has in timate
knowledge in the verification and issuance of the social stat us
certificates. In the case of the Scheduled Tribes, the R esearch
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 pla ce of
residence and original place from which the candidate hails and
usually resides or in case of migration to the town or ci ty, the
place from which he originally hailed from. The vigilance officer
should personally verify and collect all the facts of the s ocial
status claimed by the candidate or the parent or guardian, as the
case may be. He should also examine the school records, bi rth
registration, if any. He should also examine the parent, guardian
or the candidate in relation to their caste etc. or s uch other
persons who have knowledge of the social status of the candidate
and then submit a report to the Directorate together wi th all
particulars as envisaged in the pro forma , 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 caste s
or tribes or tribal communities concerned etc.”
4. The objective of issuing all these directions is enunciate d in
para 14 of this judgment, which reads as under:
“14. Since this procedure could be fair and just and shorten the
undue delay and also prevent avoidable expenditure for the State
on the education of the candidate admitted/appointed on false
social status or further continuance therein, every State
concerned should endeavour to give effect to it and see that the
constitutional objectives intended for the benefit and advancement
of the genuine Scheduled Castes/Scheduled Tribes or backward
classes, as the case may be are not defeated by unscrupulous
persons.”
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
It appears that these directions from the date of their issuance,
on 2.9.1994 apparently seem to have worked well. T he State of
Maharashtra sought a review of this order, limited to the aspect of
modification in the composition of the Scrutiny Committee, on account
of certain administrative exigencies. This request was acce ded to in
Kumari Madhuri Patil & Anr. v. Addl. Commr., Tribal
Development, Thane & Ors. 5 ( Kumari Madhuri Patil-II) in the
following terms:
“3. As regards prayer (b) read with direction No. (iv) of the
Order of this Court, we too appreciate the inconvenience caused
due to vast area of the State. Therefore, instead of one committee
of three officers, there will be three Scheduled Tr ibe/Caste
Scrutiny Committees comprising of five members with quorum
of three members, as suggested in para 4 of the directio ns, to
take a decision. At Pune, Nasik and Nagpur, six Caste Scrutiny
Committees for SCs, Denotified Tribes, Nomadic Tribes, Other
Backward Classes and the Special Backward Category in
existence at Mumbai, Pune, Nasik, Aurangabad, Amravati and
Nagpur would continue to scrutinise the certificates issued b y
the respective officers and take a decision in that behalf. In this
regard, it is also suggested by Shri Dholakia, learned Sen ior
Counsel for the applicant, that in case any certificate has be en
wrongfully refused by the certificate issuing autho rity, the
aforestated Committees also would go into the questio n and
decide in that behalf, whether refusal was wrongful and in c ase
it finds that the refusal was wrongful, they are at liberty to direct
the authority to grant the certificate.
4. With regard to prayer (c) also, we feel that the Caste Scrutiny
Committees for Social Welfare, Cultural Affairs and Sports
Department should comprise of Additional Commission er
(Revenue) — Chairman of the Revenue Division concerned;
Divisional Social Welfare Officer-Member; and Research Officer
as a Welfare Officer-Member-Secretary to function i n that
behalf.”
5. It appears that with the passage of time, and on exami ning
the matter in issue, the State of Maharashtra resolved to place before
the Assembly, a legislative enactment to cover aspects beyond education
5 (1997) 5 SCC 437
695
and employment, for different categories of SCs, STs and Back ward
Classes. The law was so enacted vide 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
(hereinafter referred to as the ‘Act of 2000’), which was br ought into
force with effect from 18.10.2001. The Preamble of this Act r eads as
under:
“An act to provide for the regulation of the issuan ce and
verification of the Caste Certificates to the persons belonging to
the Scheduled Castes, Scheduled Tribes, De-notified T ribes
(Vimukta Jatis), Nomadic Tribes, Other Backward classes a nd
Special Backward Category and for matters connected therewith
or incidental thereto.
WHEREAS it is expedient to provide for the regulation of the
issuance and verification of the Caste Certificates to the persons
belonging to the Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category and for matters connect ed
therewith or incidental thereto;”
6. The Act of 2000 provided for the constitution of a Scrutiny
Committee, while first defining Scrutiny Committee under Section 2(k)
of the ‘Definitions’ clause and then providing for the constitution of that
Committee under Section 6 of the Act of 2000. The said Sections read
as under:
“2. Definitions.
In this Act, unless the context otherwise requires, -
…. …. …. …. …. ….
(k) “Scrutiny Committee” means the Committee or committees
constituted under sub-section (1) of section 6 for the Scheduled
Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes or Special Backwa rd
Category for verification of the Caste Certificate and to perform
the function of Scrutiny Committee under this Act;”
“6. Verification of Caste Certificate by Scrutiny Committe e.
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
(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.”
7. It may, thus, be noticed that the Act, in the context of the
judgment in the Kumari Madhuri Patil 6 case, neither specified the
6 (supra)
697
exact composition of the Scrutiny Committee, nor incorpora ted the
aspect of the Vigilance Committee.
8. The Act of 2000 having come into force, the Scru tiny
Committee continued as constituted under the Kumari Madhuri Patil 7
case, and it was assisted by a Vigilance Cell, once again, constituted in
terms of the said judgment.
9. In the year 2003, while exercising powers under Section 18(1)
of the Act of 2000, empowering making of Rules, the State Government
brought into force, The Maharashtra Scheduled Tribes (Regulation of
Issuance and Verification of) Certificate Rules, 20 03 (hereinafter
referred to as the ‘Rules of 2003’), with effect from 4.6.2003. These
Rules, as is apparent from their description, were restrictive in
application, to the ST community. These Rules further did not lay down
any specifications for the constitution of the Scrutiny Committee, other
than to provide that there would be a Chairman, a Member Sec retary
and any other Member. It is these Rules, legislated a s subordinate
legislation, which brought in the Vigilance Cell. The relevant Rules read
as under:
“10. Constitution of Vigilance Cell.-
The State Government shall constitute a vigilance cell to a ssist
each Scheduled Tribe Certificate Scrutiny Committee for
conducting enquiry which shall consist of,-
(i) A Senior Deputy Superintendent of Police;
(ii) Police Inspector (number of Inspectors depending upon
the number of cases);
(iii) Police Constables to assist the Police Inspector;
(iv) Research Officer.
The police personnel shall investigate into the social status claims
by conducting school and home inquiries and other enquiry as
per the reference made by the Scrutiny Committee under su b-
rule (2) of rule 12.”
…. …. …. …. …. ….
“12. Procedure to be followed by Scrutiny Committee.
7 (supra)
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
(1) On receipt of the application, the Scrutiny Committee
or a person authorized by it shall scrutinize the
application, verify the information and documents
furnished by the applicant, and shall acknowledge the
receipt of the application. The Member Secretary shall
register the application, received for verification, in the
register prescribed by the Chairman.
(2) If the Scrutiny Committee is not satisfied with the
documentary evidence produced by the applicant the
Scrutiny Committee shall forward the applications to the
Vigilance Cell for conducting the school, home and other
enquiry.
(3) The Vigilance Officer shall go to the local place of
residence and original place from which the applicant
hails and usually resides, or in case of migration, to the
town or city or place from which he originally hailed
from.
(4) The Vigilance Officer shall personally verify and collect
all the facts about the social status claimed by the
applicant or his parents or the guardian, as the case may
be.
(5) The Vigilance Cell shall also examine the parents or
guardian or the applicant for the purpose of verification
of their Tribe, of the applicant.
(6) After completion of the enquiry, the Vigilance Cell shall
submit its report to the Scrutiny Committee who will in
turn scrutinize the report submitted by the Vigilance Cell.
(7) In case the report of Vigilance Cell is in favour of the
applicant, and if the Scrutiny Committee is satisfied that
the claim of the applicant is genuine and true, the
Scrutiny Committee may issue the validity certificate.
The validity certificate shall be issued in Form G.
(8) If the Scrutiny Committee, on the basis of the Vigilance
Cell report and other documents available, is not satisfied
about the claim of the applicant, the Committee shall
issue a show cause notice to the applicant and also
699
serve a copy of the report of the Vigilance Officer by
registered post with acknowledgement due. A copy shall
also be sent to the Head of the Department concerned,
if necessary. The notice shall indicate that the
representation or reply, if any, should be made within
fifteen days from the date of receipt of the notice and
in any case not more than thirty days from the date of
receipt of the notice. In case the applicant requests for
adjournment or extension of the time-limit, reasonable
time, may be granted.
(9) (a) After personal hearing if the Scrutiny Committee
is satisfied regarding the genuineness of the claim,
Validity Certificate shall be issued in Form G.
(b) After personal hearing, if the Scrutiny Committee
is not satisfied about the genuineness of the claim
and correctness of the Scheduled Tribe Certificate,
it shall pass an order of cancellation and of
confiscation of the Certificate and communicate the
same to the Competent Authority for taking
necessary entries in the register and for further
necessary action. The Scheduled Tribe Certificate
shall then be stamped as “cancelled and
confiscated.””
A reading of the aforesaid Rules shows that the role of the
Vigilance Cell was restricted as compared to the role envi saged under
the Kumari Madhuri Patil 8 case, inasmuch as the assistance to be
provided to the Scrutiny Committee was not in every case, b ut only if
the Scrutiny Committee was not satisfied with the d ocumentary
evidence produced by the applicant.
10. It appears that though this was restrictive, only to th e STs,
practically speaking, the Committee as constituted un der Kumari
Madhuri Patil 9 continued and verification by the Vigilance Cell was
done as per the aforesaid Rules, even though it was so confined to the
ST category. This practice apparently continued without protest or any
further clarification from this Court. On seeking clarifi cation in this
8 (supra)
9 (supra)
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
behalf, we were informed that the Rules of 2003 were so follo wed on
the principle of application of an ‘analogous’ principle.
11. We may take note of another development, i.e., a challenge
that was laid to the constitutional validity of the guidelines i n Kumari
Madhuri Patil 10 case, which was referred to the Constitution Bench
and these directions were upheld in Dayaram v. Sudhir Batham &
Ors. 11 The Constitution Bench opined that the directions issued wer e
intrinsic for the actual realization of the fundament al rights of the
Backward Classes of citizens. However, what is relevant to note is
that it was specifically opined that these directions would hold field so
long as the State Governments did not come up with a ppropriate
legislations to substitute the norms laid down in the Kumari Madhuri
Patil case. It was also opined that enquiry by the Vigilance C ell was
to be considered to be a core requirement for ascertain ment of the
veracity of the caste certificate. After discussing the aspect of judicial
activism and judicial legislation coupled with judicial rest raint, it was
opined as under:
“22. Therefore, we are of the view, that Directions 1 to 15 issued
in exercise of power under Articles 142 and 32 of the Constitution,
are valid and laudable, as they were made to fill the vacuum in
the absence of any legislation, to ensure that only genuine
Scheduled Caste and Scheduled Tribe candidates secured the
benefits of reservation and the bogus candidates were kept out .
By issuing such directions, this Court was not taking over t he
functions of the legislature but merely filling up the vacuum till
the legislature chose to make an appropriate law.”
12. The Act of 2000, having a wider compass qua all the
certificates to be issued, it appears that there wa s some difficulty
envisaged almost on the anvil of the local Self-Government el ections,
to be held in the year 2011. The controversy in issue, thus, begins with
the issuance of a notification dated 30.7.2011, by the Social Just ice,
Special Assistance Department of the State of Maharashtra, exercising
powers conferred under Section 6(1) of the Act of 2000. The provision
reads as under:
“6. Verification of Caste Certificate by Scrutiny Committee.
10 (supra)
11 (2012) 1 SCC 333
701
(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 notificat ion the
functions and the area of jurisdiction of each of such Scruti ny
Committee or Committees…”
13. It is the case of the State Government that with thousands
of candidates seeking to contest the elections, an infrastr uctural boost
was required to meet the deluge of applications for the issuance of caste
certificates sought for contesting the elections. I n terms of this
Notification, thirty-five district level committees wer e constituted to
verify caste certificates of candidates who wished t o contest the
elections to local authorities. The Chairman of the C aste Scrutiny
Committee was specified as the District Collector or th e Additional
District Collector (IAS), as against the earlier provisi on of Additional
Commissioner (Revenue), under the Kumari Madhuri Patil-II 12 case.
The relevant portion of the said Notification is reproduced as under:
“And whereas the Government of Maharashtra has now decided
to constitute District wise Caste Scrutiny Committees to appoint
District Collector or Additional District Collector (I.A.S.) as the
Chairperson of the said Scrutiny Committees for the purpose of
verification of Caste Certificate of the candidates who ( sic.)13
willing to contest for elective post in any local authority.
Now, therefore, in exercise of the powers conferred by sub-
section (1) of Section 6 of the Maharashtra Scheduled Castes,
De-Notified Castes (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regula tion
of Issuance and Verification of) Caste Certificate Act 2000 (Mah.
XXIII of 2001), the Government of Maharashtra hereby constitute
Thirty-five District Caste Scrutiny Committees as specified in the
Schedule appended hereto, for verification of Caste Certificates
of the candidates who (sic) willing to contest for elective post in
any local authority, issued by the Competent Authorities u nder
the sub-section (1) of Section 4 of the said Act.”
A reading of the extract of the aforesaid notification, thus, makes
it clear that the objective was to facilitate issuance of caste certificates
12 (supra)
13 To be read as who are willing to contest…
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
for “…verification of Caste Certificate of the candidat es who (sic)
willing to contest for elective post in any local authority…”
14. The story that unfolded in this exercise is best illustrated by
a chart produced in the impugned judgment, which was the resul t of
compliance of directions issued in that matter. The chart w as made
division-wise, with each district specified. It is n ot necessary to
reproduce the chart in its entirety, but it suffices for our purpose to
reproduce headings and the final figures for the whole of Maharashtra:
.... .... .... .... .... ....
15. The aforesaid would, thus, illustrate that there were some
certificates stamped only for election purposes, while others were not.
The manner of verification of these certificates would be evident from
the speed with which they were issued, making it difficult to accept
that there could have been any proper verification. Columns 8 & 9 itself
show how the exercise was undertaken. The lesser said the better about
this exercise!
16. It is in the context of these facts that the High Court was
greatly troubled while exercising the writ jurisdiction, where the prayer
made by the petitioners, inter alia, was qua caste certificates issued
and not issued. By an amendment, a writ was specifically sought seeking
the quashing and setting aside of the aforesaid Government Resolution
dated 30.7.2011. In these proceedings, through an elaborate judgment
dated 4.5.2012, this Resolution was quashed, with a direction that both,
the matters of constitution of the Committee and the oper ation of the
Total
Maharashtra
36929 1427 35505 7664 4359 388 290 36251
PRAPATRA – B
NECESSARY INFORMATION RELATING TO WRIT PETITION NO.853/2012
IN THE HIGH COURT, BOMBAY.
Sr.No
.
Nam
e of
the
Com
mitte
e/Dis
trict
Total
number of
Validity
Certificate
s issued
relating to
election
Validity
Certific
ates
verified
by the
Vigilan
ce Cell
Validity
certificate
s not
verified
by the
Vigilance
Cell
Number
of
candidat
es
contesti
ng the
election
to
whom
validity
certifica
tes are
issued
Number
of
validity
certifica
tes
stamped
only for
election
purpose
The
validity
certifica
tes in
which
decision
is given
in one
day.
The
validity
certifica
tes in
which
decision
is given
in two
days
The
validity
certifica
tes in
which
decision
is given
in three
or more
days.
1 2 3 4 5 6 7 8 9 10
703
Vigilance Cell (being mandatory), the directions in Kumari Madhuri
Patil 14 case have to be given full effect to. The original certif icates
issued in pursuance of the Government Resolution of 30.7.2011 were
directed to be recovered from the respective persons an d destroyed
forthwith.
17. The aforesaid judgment was assailed in this batch of appeals
before us, and the operation of the impugned judgment was stayed vide
order dated 30.7.2012. The result has been that these certificates, issued
under the aforesaid circular, have continued to hold the field and the
process followed has been as per the Act of 2000, read with the Rules
of 2003.
18. The next important development has been the enactment 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 Rules, 2012 (hereinafter referred to as the ‘Rules of 2012’),
which were notified on 31.8.2012. These Rules are comprehensive ,
unlike the Rules of 2003. The constitution of the Scrutiny Co mmittee
has been provided for in Rule 11, while the constitution of the Vigilance
Cell is provided in Rule 12 of the Rules of 2012, and the same read as
under:
“11. Constitution of Scrutiny Committee. – The Scrut iny
Committee shall consist of the following members, namely:-
14 (supra)
(a) Divisional Commissioner or Additional Divisiona l
Commissioner (Revenue) or Collector or Additional
Collector (I.A.S.) or Additional Collector (Selecti on
Grade) or Joint Secretary of the State Government o r
any officer not below the rank of Joint Secretary t o
State Government
Chairman
(b) Deputy Commissioner (Social Welfare) or Regiona l
Deputy Commissioner (Social Welfare) or Divisional
Social Welfare Officer
Member
(c) Research Officer or Assistant Commissioner (Soc ial
Welfare) or Special District Social Welfare Officer
Member-Secretary
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
12. Constitution of Vigilance Cell. – (1) There shall be a Vigilance
Cell to assist each Scrutiny Committee in conducting the f ield
inquiry under rule 17. The Vigilance Cell shall consist of, -
(a) Deputy Superintendent of Police or equivalent;
(b) Police Inspectors;
(c) Police Constables to assist the Police Inspectors.
(2) Jurisdiction of the Vigilance Cell shall be subject to territorial
jurisdiction of concerned Scrutiny Committee, for all purposes,
including domestic inquiry and verification of authenticity of
documents:
Provided that, in appropriate case, if Scrutiny Committee f eels,
it may solicit a report of Vigilance Inquiry, from any other
concerned Scrutiny Committee.
(3) Vigilance Cell shall work under the control and supervi sion
of concerned Caste Scrutiny Committee.”
19. It is relevant to note that, once again, the discretion has been
left to the Scrutiny Committee to solicit a report of vigila nce inquiry,
not making it mandatory. Thus, once these Rules were enacted, the
process of verification and issuance of caste certificates has proceeded
under these Rules.
20. In the course of hearing these appeals, what undisputedly
emerged was that the window of period with which we are conce rned
is between the Notification being issued on 30.7.2011 and the Rul es
being notified on 31.8.2012. The Rules have not been challenged by
any one, and hold the field. Thus, we are not really required to go into
what had happened before the Notification came in, or after t he Rules
came in. We may also note that the challenge before us is i n respect
of only the certificates issued for the purposes of l ocal self-body
elections, as nobody from any other category has approached the Court.
Thus, as to whether the Rules of 2003, applicable to the S T category,
should have been applied to all the categories on a n ‘analogous’
principle, does not require our adjudication. Neither the cer tificates
issued post the notification of the Rules of 2012 require our adjudication.
It is only the interregnum period that we are concerned with. However,
to deal with this interim period, certain broader princip les have to be
discussed.
705
21. An aspect noticed in the impugned order, in para 22, is the
order of the Division Bench of the Bombay High Court, opining in Writ
Petition No.2527/2009, vide judgment dated 20.1.2010, that the
appointment of the Additional Collector as a Chairman of the Scrutiny
Committee is not in accordance with law, and that this matt er was the
subject matter of appeal before this Court in Special Leave Petition
No.6003/2010, which had been admitted on 5.7.2011. In this behalf, we
have been informed that when the appeal was taken up for he aring,
the private respondents who had filed the petition withdrew the challenge
to the validity of the Caste Scrutiny Committee and wanted t o move
an application before the High Court for disposal of the w rit petition
on merits. Thus, the appeal was disposed of as infr uctuous. The
purpose of this is only to note that no opinion has been rendered in that
behalf.
22. We may also note that there were three kinds of writ petitions
filed before the High Court. The first set of writ petitioners were those
who intended to participate in the ensuing elections of local Government,
even though they did not, at that stage, have a caste validity certificate.
The prayer was for relaxation of the condition to produce t he caste
validity certificate at the time of scrutiny, which had been made
mandatory (though that certificate once issued was to remain valid for
all purposes). The second set of writ petitioners were those whose caste
certificates were invalidated by the Scrutiny Committe es, and they
sought to challenge the decision with a direction to the Returning Officer
to allow them to participate in the ensuing elections. The thir d set of
petitioners were those who challenged the Caste Validity Certi ficates
granted to the candidates who were party respondents in both petitions,
on the ground that the said certificates were obtained by fraud, with a
prayer for direction to the Election Commission to reject the nomination
papers of such candidates. The impugned judgment has been rendered
in the context of the third set of petitioners. The certificates in question
were alleged to have been obtained without vigilance reports and within
a very short period of time, as would be apparent from t he chart
aforesaid.
23. The grievance against the impugned order, however, is not
only confined to the third set of petitioners, but also to some of the second
set of petitioners, as in view of the Scrutiny Committee s not being
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
constituted in accordance with the Kumari Madhuri Patil-II 15 case,
their contention is that there was no validly const ituted Scrutiny
Committee, which could invalidate their caste certificate s.
Composition of the Scrutiny Committees
24. The impugned order is predicated on a reasoning, as if the
judgment in the Kumari Madhuri Patil 16 case, as modified by the
Kumari Madhuri Patil-II 17 case, was engraved in stone, and it was
not open for the legislature to have enacted law at variance with, or in
derogation of the same.
25. On the aforesaid aspect, on hearing learned counsel for the
parties, we are unable to persuade ourselves to agree with t he line of
reasoning adopted by the High Court. The purpose of any judicial
legislation is to fill a vacuum. It does not preclude le gislators from
enacting law. Judicial activism or judicial legislation emerged on account
of an existence of vacuum, and it was opined that the Supre me Court
would not be constrained to fold its hands in despair and plead its
inability to help the citizen who has come before it for judicial redressal
in such a situation ( Bandhua Mukti Morcha v. Union of India &
Ors. 18 ). It has been found by this Court that there is ample power
conferred by Article 32, read with Article 142 of the Consti tution to
make orders which have the effect of law by virtue of Art icle 141 of
the Constitution, by issuing directions to fill the vacuum till such time
as the legislature steps in to cover the gaps, or the executive discharges
its role ( Vineet Narain & Ors. v. Union of India & Ors. 19 ). A classic
example of this has been the seminal judgment of Vishaka v State of
Rajasthan 20 , which formulated effective measures to check the evil
of sexual harassment of working women at the work place. The re
are numerous judicial pronouncements in this behalf, but they need not
detain us further, specifically for the reason that in the very judgment
relied upon in the impugned order, i.e., the Kumari Madhuri Patil 21
case, the Constitution Bench, while examining the va lidity of the
15 (supra)
16 (supra)
17 (supra)
18 (1984) 3 SCC 161
19 (1998) 1 SCC 226
20 (1997) 6 SCC 241
21 (supra)
707
directions and upholding the same had clearly observed that “by issuing
such directions, this Court was not taking over the functions of the
legislature but merely filling up the vacuum till the legislature chose to
make an appropriate law.” 22 Needless to observe that these
observations, being of the Constitution Bench, would be binding on us,
and so would it naturally be on the High Court. We may note that while
noticing the directions in the Kumari Madhuri Patil23 case, this Court
had expressed a view that it was high time that the Govern ment of
India examine the matter in greater detail, and bring about a uniform
legislation with necessary guidelines and rules ( The Director of Tribal
Welfare, Andhra Pradesh v. Laveti Giri & Anr. 24 ) and observed as
under:
“8. While reiterating the above guidelines to be wo rkable
principles, it is high time that the Government of India w ould
have the matter examined in greater detail and bring abou t a
uniform legislation with necessary guidelines and rules prescribing
penal consequences on persons who flout the Constitution and
comer ( sic.) the benefits reserved for the real tribals etc. etc.,
so that the menace of fabricating the false records and t o gain
unconstitutional advantages by plain/spurious persons could be
prevented. Lest they would defeat the Constitutional object ive
of rendering socio- economic justice envisaged under Article 46
in the Preamble of the Constitution under Articles 14, 15, 16, 38
and 39.”
26. If we examine the controversy in the conspectus of the
aforesaid legal position, insofar as the composition of t he Scrutiny
Committee is concerned, no doubt the composition of the said
Committee was directed specifically in the Kumari Madhuri Patil25
case, and modified by the Kumari Madhuri Patil-II 26 case. The
occasion for modification also arose on account of large number of
cases to be dealt with. So long as the procedure mad e under the
notification or legislation meets the requirement of law, it cannot be said
that the Committee has to be only as per the directions of this Court.
22 Dayaram v. Sudhir Batham & Ors. (supra)
23 (supra)
24 (1995) 4 SCC 32
25 (supra)
26 (supra)
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
We have already noticed that post the Rules of 2012 being notifi ed,
there is really no problem. It is not in doubt that the power to issue the
Notification dated 30.7.2011 did exist, in terms of Section 6 (1) of the
Act of 2000. Thus, the composition of the Committee was made in
pursuance of the specific statutory power. It was also to subserve the
larger issue of setting up different committees by decent ralizing the
process, to meet the requirement of verification of the cer tificates. As
far as a delegated legislation or a notification issued un der statutory
powers is concerned, the challenge can be laid only in terms o f well
settled principles. Either the rule or notification is con trary to the
provisions of the Act, or contrary to any provision of the Constitution,
or brings about a conflict which is required to be reso lved by the
Court. 27 The challenge before us is not based on any of th ese
parameters, but is simply on the ground that the notificat ion is not in
exact conformity with the directions issued by this Court in the Kumari
Madhuri Patil28 case. Such a challenge would not be sustainable in
view of the settled principles of examining such subordinate legislation/
statutory notifications. Thus, once the legislature lays down a legislative
policy, and confers discretion upon the administrative agency for the
execution of such policy, it is up to the agency to work out th e details
within the framework of the policy. 29
Requirement of the Vigilance Cell Report
27. The second part of the challenge relates to the requireme nt
of verification of the certificates by the Vigilance C ell. This was
provided to be mandatory, in terms of the judgment in th e Kumari
Madhuri Patil 30 case. The enormity of the problems faced by the
High Court, through multifarious petitions arising qua the unverified
issuance of such certificates, possibly persuaded the High Court to lay
down stricter norms in this behalf. However, as implement ed for the
interregnum period in question, the input from the Vigilance Cell was
obtained only selectively. Under the Rules of 2012 also, the requirement
is not mandatory, but wherever the Scrutiny Committee feels it “may”
solicit a report of vigilance inquiry. We have, however, no hesitation to
27 Indian Express Newspapers (Bombay) Private Ltd. an d Ors. v. Union of India
(UOI) and Ors., AIR 1986 SC 515.
28 (supra)
29 Khambhalia Municipality v. State of Gujarat, AIR 19 67 SC 1048
30 (supra)
709
emphasise the importance of proper verification of such certificates to
be issued, and the exercise of issuance of the certificates cannot be a
casual one. The Scrutiny Committee constituted to issue the validity
certificates must, thus, at the slightest doubt take the ass istance of the
Vigilance Cell to ensure that non-entitled persons do not get benefitted
at the cost of entitled persons. We have no doubt that this is a process
which will be so followed under the Rules of 2012.
28. The matter, however, cannot rest at this because the existence
of power and its exercise are two different aspects. The view adopte d
by the High Court, appears to us, to have been in the context of the
manner of exercise carried out by the Scrutiny Committee in the given
situation, and the casual manner in which the assistance of Vigi lance
Cell was sought (or rather not sought). On those aspects, we are in
complete agreement with the view of the High Court. The exercise
carried out in the interregnum period, between 30.7.2011 (when the
Notification was issued) and 31.8.2012 (when the Rules of 2012 were
notified) leaves us, as the High Court, with grave doubt, and we are of
the view that no proper exercise could have been carried out , or was
carried out given the time frame within which the caste cer tificates
were issued. The objective was clear, i.e., to somehow facilitate as many
people as possible, as soon as possible, to contest the elect ions.
29. The troublesome aspect is that the validity certific ates are
not only valid for that election, but also for subsequent elections. They
are not only valid for educational purposes (except for some cases so
restricted), but also for all other purposes. These validity certificates
can possibly become the basis for issuance of further cert ificates to
the legal heirs. Thus, we have no doubt that the exercise so undertaken
cannot be upheld and has to be quashed with the direction to carry out
the aforesaid exercise afresh.
30. The further development, by the enactment of the Rule s of
2012 is that the said mechanism is now available within the enacted
Rules, itself. Even the contesting respondents could not seriously dispute
that the proper methodology, now, would be for a fresh verific ation
exercise to be carried out under the Rules of 2012. Learned c ounsel
for the State Government could also not seriously dispute this exercise
to be undertaken under the Rules of 2012, but only expressed concerns
about the certificates already having been issued and the complication
which would be created by forthwith withdrawal of those certi ficates.
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
31. We do appreciate the problem aforesaid and are, thus, of the
view that the fresh exercise has to be undertaken within a period of
six (6) months from today, i.e., on or before 31.3.2020. Till this exercise
is completed, the existing certificates issued for the interregnum period
would hold good. The exercise would have to be undertaken in respect
of all the certificates, except those cases where the val idity certificate
was issued after verification by the Vigilance Cell. We may, however,
hasten to add that, in view of the case pointed out to us, where the
Vigilance Cell opined otherwise and yet a caste validity certificate has
been issued, the exercise may be carried out afresh. Thus, wh erever
there is an adverse report of the Vigilance Cell and yet caste validity
certificate has been issued the exercise has to be carri ed out afresh. It
may be added that those, whose caste certificates were rejected by
the Caste Scrutiny Committee, without any Vigilance Inquir y, may be
given the right to appeal against such rejection, as per Rule 7 of the
2012 Rules.
32. We may note that one of the grievances raised by the affected
private respondents before us is that though they were impl eaded as
respondents, no notice was every issued and their matter was t agged
with the main matter and decided, in their absence. Thus, they had no
opportunity to put forth their point of view. In the same li ne, learned
counsel for the State of Maharashtra sought to place bef ore us the
problem where the directions now being issued to be carrie d out are
with respect to parties who are not before us and may be af fected by
this exercise.
33. We are conscious of the aforesaid fact. Howeve r, it is
impractical to have all the affected parties before us. Different groups
in representative capacities are before us. In terms of the impugned
order, all the original certificates issued by the spe cially constituted
Scrutiny Committees under the Government Resolution dated 30.7.2011
were to be recovered from the respective persons and were to be
destroyed forthwith for which three months time was granted. We have,
in fact while setting aside the impugned order on the questi on of law,
directed only re-verification of the certificates as to wh ether they are
in accordance with law on account of the doubts cast over the m, as
per what we have set out aforesaid. The stand of the aggrieved p arties
by the impugned judgment was, in fact, represented by the appe llant
before us. Moreover, at the time of the fresh exercise of the validity
certificate being issued, naturally the persons who have bee n issued
711
these certificates would be issued notice. In our view that would suffice
and the aforesaid directions are also necessary to do com plete justice
inter se the parties, for which we have the benefit of Article 142 of
the Constitution. It will be for the Caste Scrutiny Commi ttee to carry
out the aforesaid exercise, while notifying the parties concerned, through
appropriate public notices in this behalf. Directions we have now issued
would ensure the objectives of the Act of 2000, i.e ., issuance of
certificates only to entitled persons, through a proper exercis e, with
proper assistance from the Vigilance Cell.
34. We end with the hope that the aforesaid exercise would sub-
serve the very purpose for bringing the Act of 2000 into for ce, and
confer benefits only on the entitled persons, while weeding out the non-
entitled persons.
35. The appeals are accordingly allowed, leaving the part ies to
bear their own costs.
Devika Gujral Appeals allowed.
DIST. COLLECTOR SATARA & ANR. v.
MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]