Bombay High Court
Vivekant S/O Bhaiyaji Raghorte vs The State Of Maha. Through Chief ... on 25 August, 2016
Bench: B.R. Gavai
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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,
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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
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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
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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
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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
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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.
