Bombay High Court
Saraswati Rajnikant Mayekar vs State Of Maharashtra, Through ... on 19 November, 2015
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8788 OF 2013
Saraswati Rajnikant Mayekar,
Aged 40 years, residing at G-1,
Rahulkunj, Rahul Park Colony,
Near Jesal Park, Bhayandar (E),
District- Thane 401 105. ....Petitioner.
Vs.
1 State of Maharashtra through
its Secretary, Social Justice and
Special Assistance Department,
Mantralaya, Mumbai-32.
2 Divisional Caste Certificate
Scrutiny Committee No.1,
Mumbai Division, through its
Member Secretary having its
Office at Konkan Bhavan,
Room No. 525, 5th Floor, CBD,
Belapur, Navi Mumbai.
3 Mira Bhayandar Municipal
Corporation through its
Commissioner, having its office
at Late Indira Gandhi Bhavan,
Chhatrapati Shivaji Maharaj
Marg, Bhayandar (W),
Dist. Thane.
4 State Election Commissioner,
Maharashtra State, having its office
at Administrative Building, Opposite
Mantralaya, Mumbai-32.
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5 Naramada Yashwant Vaiti,
Alias Naramada Nandlal Vaiti,
residing at 2/B/315/Ostawan Orner,
Near Jain Mandir, Jesal Park,
Bhayandar (East), Dist. Thane. ....Respondents.
Mr. S.G. Deshmukh a/w Mr. R.K. Mendadkar a/w Ms. Helen Koli-
Mandlik a/w Mr. C.K. Bhangoji for the Petitioner.
Ms. S.S. Bhende, AGP for Respondent Nos. 1 and 2.
Mr. N.R. Bubna for Respondent No.3.
Ms. Shriya Jadhav I/by Mr. S.B. Shetye for Respondent No.4.
Mr. A.Y. Sakhare, Senior Advocate a/w Mr. Dilip B. Shinde for
Respondent No.5.
CORAM : ANOOP V. MOHTA AND
A.A. SAYED, JJ.
DATE : 19 NOVEMBER 2015.
ORAL JUDGMENT(PER ANOOP V. MOHTA, J.):-
Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
2 The Petitioner has challenged the order passed by
Respondent No.2-Divisional Caste Certificate Scrutiny Committee No.1
dated 30 July 2013, thereby declined to validate her Caste Certificate
belonging to "Macchimar Daldi", Other Backward Caste, though the
Vigilance Report supports her caste claim. The Petitioner thereby, also
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suffered an action of automatic disqualification as elected Corporator
because of invalidation of her Caste Claim. Therefore, the present
Petition.
3 This Court by order dated 24 October 2013, directed
Respondent No.4-State Election Commissioner not to declare by-
election from ward No.4(A) which is reserved for Backward Class of
Citizens women of Respondent No.3-Corporation. The said order has
been in force till this date.
4 The basic contention raised by the learned counsel
appearing for the Petitioner is revolving around Rule 17(11)(i) of the
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 and related Form No.25. Rule 17(11)(i) is reproduced
hereunder:-
"17(11 )(i) In case of those cases which are referred
to Vigilance Cell, upon considering the report of
Vigilance Cell, if the Scrutiny Committee is not
satisfied about the claim of the applicant, it shall call
upon the applicant to prove his Caste claim, by
discharging his burden, as contemplated under
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section 8 of the Act, by issuing a notice in FORM-25
coupled with copy of report of Vigilance Inquiry;"
5 After hearing both the parties and after going through the
documents on record, we have noted that no show cause notice was
issued/served upon the Petitioner as mandated by above Rules. This
Court (Coram:- Anoop V. Mohta & K.R. Shriram, JJ.) in Mr.
Sapremsing Madhavrao Patil Vs. State of Maharashtra & Ors. 1 has
already considered the Rule. The relevant paragraphs are as under:-
"2. The learned counsel appearing for the petitioner
contended that the basic requirement of Rule 17(11)
of the Maharashtra Scheduled Castes, denotified
tribes (Vimukta Jatis), nomadic tribes, other
Backward classes and Special Backward Category
(Regulation of Issuance and verification of) Caste
Certificate Rules, 2012 is not followed. No show
cause notice and/or mandatory notice issued and/or
served. The learned AGP appearing for the
Respondent, on instructions of the law officer Mr.
Milind Patil, makes statement and confirmed the said
position, after verifying the record of the Petitioner.
However, submission is made that the Petitioner did
file reply to the Vigilance Committee report. This, in
our view, in no way sufficient, not to issue show cause
notice as contemplated. It is not the case of the
Department that they are satisfied with the Vigilance
Committee report and the reply so filed by the
Petitioner. The purpose of socalled notice is to give
opportunity to all the parties concerned so that after
due deliberation and giving opportunity of all kind,
final order for and/or against can be passed deciding
1 2015(5) ALL MR 563
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the caste claim of the Petitioner. Therefore, as the
basic show cause notice was not issued, the order so
passed, in our view, is unsustainable and contrary to
the law, apart from the principle of natural justice.
3. This Court in Writ Petition No. 10570/2014-
Harshalsing S. Patil vs. State of Maharashtra, decided
on 20.2.2015, in similar matter, has set aside such
order for want of show cause notice. Therefore, we
are inclined to set aside the impugned order.
However, liberty is granted to the concerned
Respondents to issue show cause notice in accordance
with law."
Another Division Bench of this Court (Coram:-Smt. Vasanti
A. Naik & Shri. C.B. Bhadang, JJ) in Lawrence Salvador D'Souza Vs.
The State of Maharashtra (Writ Petition No. 475 of 2015) dated 11
February 2015, while dealing with the same Rule and respecting the
mandate, allowed the Petition in following terms:-
"For the reasons aforesaid, the writ petition is
partly allowed. The impugned orders dated
29.12.2014 and 30.12.2014 are hereby quashed and
set aside. The matter is remanded to the respondent
no.2-scrutiny committee for deciding the caste claim
of the petitioner and the application filed by the
respondent no.5 in accordance with law. It is needless
to state that the scrutiny committee would be required
to grant an opportunity to the petitioner to cross-
examine the principal and the clerk of the concerned
school if the petitioner, so desires and also issue a
show-cause notice to the petitioner in FORM-25 as per
Rule 17(11) of the Rules of 2012, if the scrutiny
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committee is not satisfied with the claim. We direct
the scrutiny committee to decide the matter as
expeditiously as possible and positively within a
period of three months from the date of appearance of
the parties before the scrutiny committee. The
Petitioner undertakes to appear before the scrutiny
committee on 27.2.2015 so that issuance of notice to
the petitioner could be dispensed with. Since the
order of the scrutiny committee is set aside, the
consequential order of the corporation, disqualifying
the petitioner would not survive and the same is set
aside. Rule is made absolute in the aforesaid terms
with no order as to costs.
The submission is also made that there is no dispute that
the Vigilance Report supports the case of the Petitioner, referring to
the Caste in question. After going through the order passed by the
Divisional Caste Certificate Scrutiny Committee, we have also noted
that no specific reasons are given to disregard the findings in support
of the caste claim of the Petitioner. Apart from this, no opportunity as
required under Rule 17(11)(i) and show cause notice was given to the
Petitioner. This, in our view, is sufficient to interfere with order dated
30 July 2013 passed by the Divisional Caste Certificate Scrutiny
Committee. As the impugned order so passed is in breach of mandate
of the Rule and contrary to the judgments so referred above, we are
not inclined to accept the contention of the learned counsel appearing
for the Respondents that the Petitioner, after receipt of the Vigilance
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Report made submission in writing in support of the same and
therefore, there was no question of giving the fresh show cause notice.
Considering the scope and purpose and the object as contemplated in
the Rules, specifically when there is Vigilance Report in favour of the
Claimant, for taking any adverse decision and/or for any contrary
view, it is necessary to issue show cause notice and to give opportunity
to the Claimant in whose favour Vigilance Report is placed on record.
Therefore, admittedly, as no show cause notice and/or the opportunity
so contemplated were given, we are inclined to allow this Petition and
pass the consequential order in the following terms:-
ORDER
a) Impugned order dated 30 July 2013 passed by
Respondent No.2-Divisional Caste Certificate Scrutiny
Committee, is quashed and set aside, with liberty to
issue fresh show cause notice, if so advised.
b) Matter is remanded back to Respondent No. 2-
Divisional Caste Certificate Scrutiny Committee, for
deciding the Caste Claim of the Petitioner in
accordance with law, by giving equal opportunity to all
the concerned as early as possible, preferably within
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three months from the date of receipt of copy of the
Judgment/Order.
c) In view of above, consequential order dated 26 August
2013, passed by the Respondent-Corporation
disqualifying the Petitioner would not survive and the
same is also quashed and set aside.
d) Rule made absolute in the above terms.
e) There shall be no order as to costs.
(A.A. SAYED, J.) (ANOOP V. MOHTA, J.)
