Bombay High Court
Namdeo S/O Baburao Ingale And 5 ... vs Scheduled Tribe Caste ... on 16 December, 2014
Bench: A.B. Chaudhari
Writ Petition No.2386.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.2386 of 2014
1. Namdeo son of Baburao Ingale,
aged about 28 years,
occupation nil,
resident of at Post
Dasarkhed, Tq. Malkapur,
Distt. Buldana.
2. Vasant son of Ramdas Nimbalkar,
aged about 52 years,
occupation nil,
resident of Gopal Krishna
Nagar, Malkapur,
Tq. Malkapur,
Distt. Buldana.
3. Madhukar Omkar Nimbalkar,
aged about 49 years,
occupation nil,
resident of Yashodham Colony,
Malkapur, Tq. Malkapur,
Distt. Buldana.
4. Sanjay son of Ukha Ingale,
aged about 47 years,
occupation nil,
resident of Mangal Gate Road,
Ward No.17,
near House of Dhokane,
Malkapur,
Tq. Malkapur,
Distt. Buldana.
5. Gajanan son of Shankar
Nimbalkar,
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Writ Petition No.2386.14
2
aged about 52 years,
occupation nil,
resident of Bodwad Road,
Santaji Nagar,
Malkapur,
Tq. Malkapur,
Distt. Buldana.
6. Pralhad son of Ramchandra
Pawar, aged about 65
years,
occupation nil,
resident of at Po Vadoda
Panhera, Tq. Malkapur,
Distt. Buldana. &.. Petitioners.
Versus
1. Scheduled Tribe Caste Certificate
Scrutiny Committee,
Amravati,
through its Member-Secretary,
Irwin Chowk,
Amravati.
2. Sub-Divisional Officer,
Malkapur,
Tq. Malkapur,
Distt. Buldana.
3. State of Maharashtra,
through its Secretary,
Department of Social Welfare,
Cultural & Sports,
Mantralaya, Mumbai. .... Respondents.
*****
Mr. Amit Balpande, Adv., for the petitioners.
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Writ Petition No.2386.14
3
Mr. K.P. Sadavarte, Adv., for respondent no.1.
Mr. N.R. Patil, Asstt. Govt. Pleader for respondent
nos. 2 and 3.
*****
CORAM : A.B.CHAUDHARI AND
P.R. BORA,JJ.
ig Reserved on : 27th November, 2014.
Pronounced on : 16th December, 2014.
J U D G M E N T [Per A.B. Chaudhari,J.] :
01. Rule. Rule is made returnable forthwith.
Learned Adv. Mr. K.P. Sadavarte waives service on
behalf of respondent no. 1, and learned AGP Mr. N.R.
Patil, for respondent nos. 2 and 3. With the consent of
rival parties, this Writ Petition is taken up for final
hearing.
02. Being aggrieved by the impugned orders dated
th
14 December, 2011 passed by the Sub-Divisional
Officer, Malkapur, in the matter of refusal to issue
Caste Certificates to the petitioners, and confirmed in
Writ Petition No.2386.14
appeals by the Appellate Authority vide its orders
th
dated 18 February, 2014, the petitioners have
approached this Court by present petition.
03. In support of the Writ Petition, learned
counsel for the
ig petitioners made the following
submissions:-
[a] The petitioners belong to Thakur,
in Part-IX [Maharashtra] of the
Constitution (Scheduled Tribes) Order,
1950.
[b] All the petitioners applied to Sub-
Divisional Officer, Malkapur, for
issuance of Scheduled Tribe Caste
Certificates to them with relevant
documents in support of their claim as
belonging to Thakur, Scheduled Tribe.
[c] The Sub-Divisional Officer made a
long-drawn order in respect of each
petitioner and discussed all the
documents filed by the respective
petitioners, so also the decisions of
Writ Petition No.2386.14
the High Court and also adjudicated
that the petitioners did not belong to
Thakur, Scheduled Tribe community and
also did not fulfill the requirement
of affinity test and, therefore, they
could not be issued any Caste
Certificate, he having come to the
conclusion that the petitioners do not
belong to Thakur caste, Scheduled
Tribe. He, thus, refused to grant
certificates to the petitioners.
[d] The petitioners filed appeals before
the Appellate Authority which merely
affirmed the orders passed by the Sub-
Divisional Officer for the reasons
recorded by him.
The petitioners have, therefore, filed the
instant petition.
04. Learned counsel for the petitioners then
submitted that after coming into force of the
Maharashtra Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Other
Writ Petition No.2386.14
Backward Classes and Special Backward Category
(Regulation of Issuance & Verification of) Caste
Certificates Act, 2000 (Act No. 23 of 2001) and he
Gazette Rules framed therein, the competent authority
to issue a Caste Certificate is the Sub-Divisional
Officer having jurisdiction over the area or place to
which the applicant originally belongs. According to
the learned counsel for the petitioners, all the
petitioners belong to the villages in the Taluka of
Malkapur and within the jurisdiction of Sub-Divisional
Officer, Malkapur, and, therefore, their places of
origin being in the Taluka of Malkapur, it was the Sub-
Divisional Officer alone, who was the competent
authority to issue Caste Certificates. According to the
learned counsel for the petitioners, the Sub-Divisional
Officer, who is supported to issue Caste Certificates,
has no authority in law to make a detailed adjudication
as if it were the Scheduled Tribes Castes Certificates
Scrutiny Committee, whose function is to adjudicate and
validate/invalidate the Caste Certificate issued by the
Sub-Divisional Officer. Learned counsel for the
Writ Petition No.2386.14
petitioners contended that the Sub-Divisional Officer
or the competent authority, whose job is to issue a
Caste Certificate, has clearly usurped his authority
and acted as if the competent authority or the Sub-
Divisional Officer, Malkapur, was the Scheduled Tribes
Castes Certificates Scrutiny Committee.
ig According to
learned counsel for the petitioners, the Act and the
Rules do not contemplate Sub-Divisional Officer to
adjudicate before issuing a Caste Certificate and
record a finding accordingly. Learned counsel for the
petitioners also submitted that the Appellate Authority
too mechanically rejected the appeals filed by the
petitioners. The counsel for the petitioners,
therefore, prayed for reversal of the orders impugned
and also urged this Court to define the jurisdiction of
the authorities under the Act.
05. Per contra, learned counsel for the Scrutiny
Committee as well as other respondents supported the
impugned orders passed by the Sub-Divisional Officer,
Malkapur, so also by the Appellate Authority. They
Writ Petition No.2386.14
contended that the competent authority or the Sub-
Divisional Officer is entitled to verify the
genuineness of the claims of the petitioners or the
applicants as provided by the Rules and, therefore, no
fault can be found out with the impugned orders.
According to the learned counsel for the respondents,
the competent authority or the Sub-Divisional Officer
has found the claim of the petitioners to be false,
though they belong to Taluka of Malkapur and though
Sub-Divisional Officer, Malkapur, is the competent
authority having jurisdiction over the area. However,
learned counsel for the respondents submitted that the
Sub-Divisional Officer has examined the details and
come to the conclusion that the petitioners do not
belong to Thakur, Scheduled Tribe and the reasons are
based on the judgment of this Court quoted by him in
the impugned orders. The counsel for the respondents,
therefore, prayed for dismissal of the Writ Petition.
CONSIDERATION ;
Writ Petition No.2386.14
06. Perused the entire record of the Writ
Petition. Heard learned counsel for the rival parties
at length.
07. The ig important question defining the
jurisdiction of the competent authority or the Scrutiny
Committee for Verification of Castes Certificates of
Scheduled Tribes has fallen for consideration in the
present Writ Petition. Survey of the provisions
Maharashtra Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward Category
(Regulation of Issuance & Verification of) Caste
Certificates Act, 2000 (Act No. 23 of 2001), and the
Rules framed thereunder is required to be made in order
to decide the question.
08. The preamble of the Act shows that it was
enacted to provide for the regulation of the issuance
and verification of the Caste Certificates. Section 2
Writ Petition No.2386.14
(a), (b) and (k) reads thus:-
2. In this Act, unless the context
otherwise requires,-
(a) Caste Certificate means the
certificate issued by the Competent
Authority to an applicant indicating
therein the Scheduled Caste, Scheduled
Tribe, De-notified Tribe (Vimukta Jatis),
Nomadic Tribe, Other Backward Class or
Special Backward Category, as the case may
be, to which such applicant belongs;
(b) Competent Authority means a officer
or authority authorized by the Government,
by notification in the Official Gazette, to
issue a Caste Certificate, for such area or
for such purposes as may be specified in
the said notification and shall include all
the Competent Authorities already
designated by the Government before the
coming into force of this Act, having
jurisdiction over the area or place to
which the applicant originally belongs,
unless specified otherwise;
(k) Scrutiny Committee means the
Committee or committees constituted under
sub-section (1) of section 6 for the
Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes or Special
Backward Category for verification of the
Caste Certificate and to perform the
function of Scrutiny Committee under this
Act;
From above provisions, it is clear that the Caste
Certificate has to be issued and the authority doing so
Writ Petition No.2386.14
is the Competent Authority. The Competent Authority
means such authority, and in the instant case, the Sub-
Divisional Officer, Malkapur, having jurisdiction over
the area or place to which the applicant originally
belongs. This clearly shows that a person cannot apply
for issuance of a Caste Certificate as per his choice
and if he wants a Caste Certificate, he must apply to
the concerned competent officer of the area or place to
which such applicant originally belongs, means his
father, forefathers belong to. Thus, a person, whose
forefathers or he himself belong/belongs to a place,
namely Malkapur, cannot apply for issuance of a Caste
Certificate at a place other than Malkapur and the
competent authority must first find out from the
applicant as to the place or area where he originally
belongs before entertaining the application for
issuance of a Caste Certificate. In our opinion, this
is one of the criteria or requirement to find out the
genuineness of the claim of a candidate or the
applicant claiming a Caste Certificate from the
competent authority. It is, however, found that merely
Writ Petition No.2386.14
because father or parents of a student or the applicant
are transferred and posted at a place other than to
which the applicant or his forefathers belong, the
application is made for issuance of a Caste Certificate
at such a place of transfer and even the competent
authority at such a place to which the applicant does
not originally belong, issues a Caste Certificate. In
our opinion, that is completely wrong and illegal.
And, therefore, we lay down a guideline that when an
application is received by Competent Authority for
issuance of a Caste Certificate, the first thing, that
should be done, is to make enquiry and verify the area
or the place to which the applicant or his forefathers
originally belong and after finding out the area or the
place accordingly, to direct the applicant to go to the
appropriate competent authority, as the case may be. We
are fortified by the provision of Section 4 (2) of the
Act, since it provides that a Caste Certificate issued
by any authority other than the competent authority,
shall be invalid, which clearly means that if a Caste
Certificate is issued by the competent authority, in
Writ Petition No.2386.14
this case, other than the Sub-Divisional Officer,
Malkapur, the same would be invalid.
09. With the above preface, now we proceed to
determine the other question. Section 2 (k) defines
Scrutiny Committee
ig which means the Committee
constituted under Section 6 (1) of the Act for
verification of the Caste Certificate and to perform
functions of Scrutiny Committee. It is, thus, clear
from the close reading of these provisions that the
competent authority or the Sub-Divisional Officer,
Malkapur, in this case, has only the power to issue a
Caste Certificate, while the Scrutiny Committee has the
power to verify the Caste Certificate issued by the
competent authority or the Sub-Divisional Officer,
Malkapur. Unless a Caste Certificate is issued by the
Competent Authority or the Sub-Divisional Officer, as
discussed above, the question of verification of the
said Caste Certificate would not arise. At any rate, a
cart cannot be put before the horse.
Writ Petition No.2386.14
10. Section 4, as quoted above, shows that the
competent authority has been asked to satisfy itself
about the genuineness of the claim and to follow the
procedure as prescribed. The question is what is the
scope and ambit of the words genuineness of the claim
as per Section 4 (1)? Can the meaning of the word
genuineness supersede or surpass what is provided in
Section 6 in relation to the constitution of Scrutiny
Committee, job of verification and issuance of a Caste
Validity Certificate upon verification? Section 6 then
reads thus:-
6. (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
Writ Petition No.2386.14
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 obtained 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.
It is clear from reading of Section 6 of the Act that
the Caste Scrutiny Committee constituted as per Sub-
section (1) of Section 6 has to have a Caste
Certificate issued by the competent authority before it
for verification and for issuance of a Caste Validity
Certificate. Caste Scrutiny Committee is thereafter
Writ Petition No.2386.14
required to follow the procedure vide sub-section (4)
of Section 6 for verification and grant of a Validity
Certificate.
11. Section 15 of the Act then reads thus:-
15. Noig Civil Court shall have
jurisdiction to entertain, to continue or
to decide any suit or proceeding or shall
pass any decree or order or execute wholly
or partially any decree or order, if the
claim involved in such suit or proceeding,
or if the passing of such decree or order
or if such execution would in any way be
contrary to the provisions of this Act.
The above provision provides a bar of jurisdiction of
the Civil Court.
12. Rule 2 (g) and (h) defines Scheduled Tribe
Certificate and Validity Certificate . They read
thus:-
2. Definitions .
(g) Scheduled Tribe Certificate means a
certificate issued by the Competent
Authority indicating therein the
Scheduled Tribe to which the
applicant belongs;
Writ Petition No.2386.14
(h) Validity Certificate means a
Certificate issued by the Scheduled
Tribe Certificate Scrutiny Committee
validating the Scheduled Tribe
Certificate issued by the Competent
Authority.
13. It is, thus, clear that Caste Certificate and
Validity Certificate are two different things, so also
the authorities issuing them. The Validity Certificate
cannot be issued unless the Competent Authority issues
the Caste Certificate, which is required to be
verified by the Caste Scrutiny Committee in exercise of
power under Section 6 of the Act. The decision given
by the Caste Scrutiny Committee, which is constituted
as per Section 6 of the Act, cannot be challenged
before Civil Court and, therefore, it can safely be
said that the decision given by the said Committee has
been given finality under the Act.
14. The contention raised by the learned counsel
for the respondents that the Competent Authority is
empowered to find out the genuineness of the claim for
issuance of the Caste Certificate and, therefore,
Writ Petition No.2386.14
consequently is entitled to make adjudication in
accordance with the said principles regarding
documentary evidence as well as the affinity test etc.,
and that, therefore, the Sub-Divisional Officer,
Malkapur, was right in rejecting the requests of the
petitioner for issuance of Caste Certificates does not
appeal to us. We find that Rule 4 (5) provides for the
Competent Authority to scrutinize the claim of
applicant and satisfy himself about the genuineness of
claim. But then, this must be construed in harmony
with the form and procedure prescribed by the act and
the Rules, by which a separate Caste Scrutiny Committee
has been constituted with experts therein and the
procedure has been laid down for appointment of the
Vigilance Cell etc., which is not so in the case of the
Competent Authority. We quote Rule 12 of the Rules
which reads thus:-
12. Procedure to be followed by Scrutiny
Committee.
(1) On receipt of the application, the
Scrutiny Committee or a person
authorized by it shall scrutinize the
application, verify the information
Writ Petition No.2386.14
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.
Writ Petition No.2386.14
(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 serve a copy of the report
of the Vigilance Officer by
registered post with acknowledgment
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
Writ Petition No.2386.14
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
ig register and for further
necessary action. The
Scheduled Tribe Certificate
shall then be stamped as
cancelled and confiscated.
15. Perusal of the above Rule 12 clearly shows
that the Scrutiny Committee has been empowered to make
an adjudication in various details and from all angles
and the function of the Vigilance Cell is
investigative, while that of Scrutiny Committee is
adjudicative and it clearly acts as a quasi judicial
authority, if not a Court of Law. The Committee
consists of various members and experts. To sum up, in
our opinion, it would not be harmonious, but also
inconsistent with the scheme of the Act, to hold that
the Competent Authority, who is required to satisfy
itself about genuineness of the caste claim, would be
Writ Petition No.2386.14
entitled to make adjudication about the validity of the
claim of the applicant under the garb of satisfying the
genuineness of the claim for a Tribe Certificate. The
fact that under the scheme of the Act, the Caste
Scrutiny Committee constituted under Section 6 can
verify the Caste Certificate only after its issuance by
the Competent Authority and not otherwise, clearly
shows that the only harmonious construction keeping in
mind the scheme of the Act and the Rules would be to
hold that the Sub-Divisional Officer does not have a
power to verify the claim for issuance of a Caste
Certificate, but has to only find out whether minimum
requirement is made out for issuance of a Caste
Certificate. To hold otherwise would be making the
constitution of Caste Scrutiny Committee as well as
power of verification of Caste Certificates nugatory
and to completely deface, defile or remove the
provisions of verification of caste certificates by the
Scrutiny Committee.
16. In view of the above discussion, we must set
Writ Petition No.2386.14
aside both the impugned orders, namely the orders dated
th
14 December, 2011 [Annex.2 collectively] passed by
the Respondent No.2, Sub-Divisional Officer, Malkapur,
Distt. Buldana, as well as the appellate orders dated
th
18 February, 2014 [Annex.1 collectively] passed by
the respondentig no.1, Caste Scrutiny Committee,
Amravati. We, therefore, make the following order:-
O R D E R
[a] Rule is made absolute in terms of Prayer
Clause [i] of the Writ Petition.
[b] No order as to costs.
17. A copy of this Judgment be sent to the
Principal Secretary, Social Welfare & Tribal
Development Department, Mantralaya, Mumbai, for
communicating the guidelines in the Judgment to all
Competent Authorities in the State.
JUDGE JUDGE
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Writ Petition No.2386.14
