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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
PUBLIC INTEREST LITIGATION NO.91 OF 2016
Vivekant s/o. Bhaiyaji Raghorte
(President, Indian Social Society,
Kuhi, Distt. Nagpur),
Aged about 37 years, Occ. Social
Service, r/o. 55, Sant Tukadoji
Nagar, Narsala Road, Nagpur. .......... PETITIONER
// VERSUS //
1. The State of Maharashtra,
Through its Chief Secretary,
Social Justice & Special Assistance
Department, Hutatma Rajguru
Chowk, Madam Cama Marg,
Mantrayala, Mumbai-32.
2. State of Maharashtra,
through its Secretary, Social
Welfare Department, Mantralaya,
Mumbai.
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3. State of Maharashtra,
through its Secretary,
Tribal Welfare Department,
Mantralaya, Mumbai.
4. State of Maharashtra,
through its Commissioner,
Social Welfare, 3, Church
Road, Pune.
5. Director General,
Dr. Babasaheb Ambedkar
Research and Training
Institute, 28, Queens Garden,
Near Old Circuit House,
Pune. .......... RESPONDENTS
____________________________________________________________
Mr.S.R.Narnaware, Adv. for the Petitioner.
Mr.S.M.Ukey, A.G.P. for Respondent Nos. 1 to 5.
____________________________________________________________
CORAM : B.R. GAVAI
AND
V. M. DESHPANDE, JJ.
DATED : 25th AUGUST, 2016.
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Rule. Rule is made returnable forthwith. Heard by consent.
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2. The petitioner has approached this Court being aggrieved by Government Resolution dt.1.6.2016 to the extent it abolishes the post of Deputy Superintendent of Police on the Vigilance Cell of the Scrutiny Committee established for the purpose of caste verification.
3. It is the contention of the petitioner that the said Government Resolution insofar as it deletes the posts of Deputy Superintendent of Police, is in conflict with Rule 12 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"). It is further the contention of the petitioner that the said is also in conflict with the Judgment of the Apex Court in the case of Kumari Madhuri Patil and another .vs. Additional Commissioner, Tribal Development and Others reported in AIR 1995 SC 94.
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4. It is to be noted that, in the State of
Maharashtra, there was no proper procedure prescribed for verifying claims of the candidates belonging to Scheduled Caste, Scheduled Tribe, V.J.N.T. and Other Backward Class etc. Taking note of the same, the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (cited supra) issued various guidelines. Their Lordships have directed constitution of a Committee and also directed that each Committee should be assisted by Vigilance Cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Vigilance Cell was directed to 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. The Vigilance Cell was also directed to examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of social status of candidate.
5. Nodoubt that the said directions were to hold the field till proper legislation was enacted. Subsequently, ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:08:23 ::: 5 pil91.16.odt the Maharashtra Legislature has enacted "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"). It will be appropriate to refer to Section 18 of the Act of 2000.
" 18 (1) The Government may, subject to the previous publication, by notification in the Official Gazette, make rules to carry out all or any of the purposes of this Act.
(2) Every rule made under this Act shall be laid, as soon as may be, after it is made, before each House of the State Legislature, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify their decision to that effect in the ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:08:23 ::: 6 pil91.16.odt Official Gazette, the rule shall, from the date of publication of such decision in the Official Gazette, have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule. "
6. It could thus be seen that power is given to the State Government to make rules to carry out all or any of the purposes of the said Act. However, this power is subject to previous publication. Sub-section 2 of Section 18 would clearly show that every rule made under the said Act is required to be placed before each House of the Legislature. Power is also given to the Legislature to make modification of the Rules framed by the State Government or to resolve that such a rule be not made.
7. It could thus be seen that the rules which are framed under the said Act are required to be approved by the Legislature and are also required to be preceded by ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:08:23 ::: 7 pil91.16.odt previous publication. The State Government in pursuance to the said power has framed the said rules. It will be appropriate to refer to Rule 12 of the Rules of 2012.
"12. Constitution of Vigilance Cell -
(1) There shall be a Vigilance Cell to assist each Scrutiny Committee in conducting the field 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 feels, it may solicit a report of ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:08:23 ::: 8 pil91.16.odt Vigilance Inquiry, from any other concerned Scrutiny Committee.
(3) Vigilance Cell shall work under the control and supervision of concerned Caste Scrutiny Committee. "
8. Perusal of the said Rule would reveal that the Vigilance Cell shall consist of (a) Deputy Superintendent of Police or equivalent, (b) Police Inspectors, (c) Police Constables to assist the Police Inspectors.
9. By the impugned Government Resolution, the post of Deputy Superintendent of Police is abolished and 36 posts of Police Constables have been approved. In the affidavit filed on behalf of the respondent/State, the said stand has been sought to be justified. It is stated that the State Government has now proposed to establish 36 District-wise Caste Certificate Scrutiny Committees. It is stated that, as compared to the present workload of Divisional Caste Certificate Scrutiny Committees, the workload of District Caste Certificate Scrutiny Committees ::: Uploaded on - 30/08/2016 ::: Downloaded on - 31/08/2016 00:08:23 ::: 9 pil91.16.odt will be less. It is, therefore, stated that the respondent is of the opinion that, in the new set-up, there is no need to have a Deputy Superintendent of Police. It is further stated that, by considering these facts, the Government of Maharashtra has abolished all the 15 posts of Superintendent of Police and issued Government Resolution dt.1.6.2016. It is further stated that, in the present set up, Vigilance Cell consists of one Police Inspector and one Police Constable for each District Caste Certificate Scrutiny Committee, which is enough to conduct the Vigilance Cell inquiry. It is further sought to be justified that though total 15 posts of Deputy Superintendent of Police were sanctioned for all 15 Divisional Caste Certificate Scrutiny Committees, all the posts were never filled in by the Home Department due to shortage of Deputy Superintendents of Police. It is further sought to be stated that all the posts of Vigilance Cell of three Divisional Caste Certificate Scrutiny Committees of Nagpur Division are lying vacant since last one and half years.
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10. With great respect to the respondent/State Government, we will have to state that the opinion of the State Government cannot have a superseding effect over the statutory enactment and rules. No precedence is required to hold that the Government Resolution cannot supersede the subordinate Legislation and that too, when it is required to be published after a previous publication and is required to be approved by both the Houses of the Legislature.
11. We are at pains to state that, in spite of legal position being well settled, the respondent/State has the audacity to state in paragraph 11 of the affidavit that " it would be clear that the act of non-consisting of Deputy Superintendent of Police in Vigilance Cell is perfectly legal and valid". It appears that the person who has sworn the affidavit does not have knowledge of basic legal principle.
If that be so, the least that was expected of the State Government was to seek opinion of the Law and Judiciary Department, which is very much available in the same building.
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12. Needless to state that the Hon'ble Supreme Court in the case of State of Maharashtra and Others .vs. Sanjay K. Nimje reported in (2007) 14 SCC 481 had an occasion to consider the case arising out of the said Act and Rules and Their Lordships have in unequivocal terms held that the Government Resolution cannot apply where the provisions of the Act and Rules framed thereunder are applicable.
13. In that view of the matter, we are of the considered view that unless the rules are amended by following the procedure as prescribed under Section 18 of the Act of 2000, it is not permissible to the State Government to constitute a Vigilance Cell without a Deputy Superintendent of Police. In that view of the matter, the Government Resolution dt.1.6.2006 to the extent it abolishes the post of Deputy Superintendent of Police stands quashed and set aside.
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14. With the above observations and directions, the Writ Petition is disposed of. No order as to costs.
JUDGE JUDGE
[jaiswal]
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.
Uploaded by : Jaiswal, P.S. Uploaded on : 30.8.2016.
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