Sanjay Bhaskar Raimulkar vs State Of Maha., Through Its ...
2017 Latest Caselaw 963 Bom

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                                         1



                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT NAGPUR, NAGPUR.
                                       ...

WRIT PETITION NO.538/2016 Sanjay Bhaskar Raimulkar Aged about 45 years, elected member of Legislative Assembly in the election held in 2014 from Mehkar Constituency, Resident of : At & Po: Nandra-Dhande, Tq. Mehkar,Dist. Buldana. ..PETITIONER

v e r s u s

1) State of Maharashtra Through its Secretary Ministry of Tribal Welfare and Social Justice, Mantralaya, Mumbai -400 032.

2)      Divisional Caste Scrutiny Committee No.2
        Amravati Division, Akola, having its office  
        in the premises of Collector, 
        Administrative Building, 2nd floor,  Akola 
        Through its  Deputy  Director (R)/Member

3)      State Election Commission
        Maharashtra State, Mumbai. 

4)      Collector, 
        Buldana. 

5)      Sahebrao Ashruji  Sardar 
        Resident of  Sarthak
        Plot No.1, Circular Road, Buldana. 

6)      Waman Namdeo More 
        At & Po: Chaigaon 
        Tq. Mehkar, Dist.Buldana.





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7)       Daulat  Konduji  Mankar 
         Daifal,  Post:Tamla,  
         Tq.Lonar,  Dist. Buldana. 

8)       Vitthal Bhikaji Mankar
         Resident of Bori,  Po: Sonati, 
         Tq. Mehkar, Dist. Buldana

9)       Mrs. Mandakini Bhimrao Kankal 
         Resident of Opp: Cotton Market Petrol  Pump

Opp: to Agricultural Produce Market Committee Mehkar, Dist. Buldana.

10)      Prabhakar  Namdeo Sapkal
         Resident of  Shikshak Colony, 
         Mehkar,Dist. Buldana. 

11)      Vijay  Khanduji  More 
         At & Po:  Shelgaon Deshmukh 
         Tq. Mehkar, Dist.Buldana. 

12)      Dnyaneshwar  Bhikaji  Debaje 
         Resident  of Indranagar, Mehkar 
         Dist. Buldana. 

13)      Vitthal Daulat Thakarke 
         Resident of Indra Nagar, 
         Mehkar, Dist.Buldana. 

14)      Prof. D.G. Gaikwad   
         Vice Principal, 
         M.S. High School, 
         Mehkar, Dist. Buldana. 

         (Respondent nos. 5  to  14   are the 
         complainants  before the respondent no.2 

Scrutiny Committee hence to avoid technicalities these complainants are joined as party respondents to this petition). ...RESPONDENTS

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...........................................................................................................................

Mr. C.S. Kaptan, senior counsel with Mr. A.M. Ghare, Adv. for petitioner Mrs.B.H.Dangre,Govt.Pleader with Mr.A.A.Madiwale, A.G.P for respondents 1 ,2 and 4 Mr.P. S.Wathore, Advocate for respondent no.5 Mr.S.R. Narnaware, Advocate for respondents 6,7 and 11 ............................................................................................................................

                                                     CORAM:  B.P. DHARMADHIKARI    &
                                                                                   
                                                                MRS
                                                                   . SWAPNA  JOSHI, JJ
                                                                                      . 
                                                     DATEOF RESERVING:  10.02.2017
                                                     DATE OF PRONOUNCEMENT: 23.03.2017


JUDGMENT: (PER MRS. SWAPNA JOSHI, J.)

1. By this petition, the petitioner has challenged the order passed by

respondent no.2-Scrutiny Committee, Akola, Amravati Division, dated

19.01.2016, invalidating caste claim of petitioner as belonging to

'Balai'(Scheduled Caste).In fact, the petitioner as well as the respondents

based their arguments upon the order which stipulates the date as

31.12.2015.

2. The Competent Authority issued the caste certificate of the

petitioner in the year 2006 as 'Balai' (Scheduled Caste). Mehkar (Dist.

Buldana) Legislative Constituency seat was served for Scheduled Caste

category. The petitioner was elected to Maharashtra Legislative Assembly

from Mehkar constituency in the year 2009. In the year 2014, he again

contested the election of Member of Legislative Assembly against the

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seat reserved for S.C.candidate and was elected. The respondent no.5

filed a complaint with the Scrutiny Committee about the caste of the

petitioner. On the basis of the said complaint, verification process of the

caste was initiated. On 31.12.2015 out of three members, two members

of the Scrutiny Committee invalidated the caste claim of the petitioner;

whereas the third member of the Committee proceeded to pass a

separate dissenting order, validating caste claim of the petitioner as

'Balai' (Scheduled Caste). The order passed by the majority members of

the Scrutiny Committee is impugned in the present petition.

3. As far as rival contentions of the learned counsel for the respective

parties are concerned, it would be advantageous to make a brief

reference to it. Learned senior counsel Mr.C.S. Kaptan with Mr.Ghare for

petitioner, vehemently argued that prior to deciding the caste claim of

the petitioner, the Scrutiny Committee, the petitioner was elected in

October/November, 2009. The Scrutiny Committee called for the old

records of pre-Constitutional era from 1912 onwards from the Revenue

Department, which reflected the caste of forefathers of petitioner as

'Sutar-Balai'. The new documents which were post-Constitutional era

reveals the caste as 'Sutar' (OBC). Learned senior counsel contended that

pre-Constitutional documents are of greater probative value while

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determining the caste claim of the candidate. He submitted that since

the forefathers of the petitioner were conducting the business of

carpentry, the word 'Sutar' appears in the entries of old registers.

According to him, the Scrutiny Committee has ignored the pre-

Constitutional record, although these entries established the fact that

caste of the petitioner was Balai and suspicious entries are taken for

corroboration to discard the petitioner's caste claim. Mr. Kaptan stated

that the petitioner is unable to explain the erasers in old entries and so

also it is nobody's case that those documents are fraudulent entries and

there is an interpolation thereof. Those entries are examined by

Handwriting Expert and the authenticity of those entries has been

established. He urged that the report of Vigilance Cell cannot be the

basis for finding of the Scrutiny Committee. The Scrutiny Committee has

to apply its mind to the material on record and not to rely upon the

opinion of Vigilance Cell. It is submitted that it was not necessary to use

the word 'false' in the 'concluding' part of the order of the Scrutiny

Committee, although the Committee has not given a finding on that line.

4. On the point of constitution of Committee, the contention of

learned senior counsel was that out of three members of the Committee,

one member was not possessing Masters Degree ( i.e. M.A.) in Sociology

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and Anthropology and as such, was not competent or qualified to decide

the caste claim of the petitioner. According to Mr.Kaptan, the order of the

Scrutiny Committee is found to be illegal on that ground itself.

Mr.Kaptan pointed out that one of the members of the Committee i.e. Mr

K.M.Bhoyar was not in officiating capacity at the time of passing of the

order. He further submitted that the Committee has even discarded the

validity of his brother-Arun Raimulkar and his daughter-Pallavi Arun

Raimulkar.

5. In support of his contentions, Mr. Kaptan placed reliance upon the

judgment in the case of S.Parthasarathi vs. State of Andhra Pradesh,

reported in (1974) 3 SCC 459, wherein it was held by the Hon'ble Apex

Court:

19. .... even assuming that as Director-in-charge Manvi was authorised to conduct the enquiry, that authority came to in end when he ceased to be the Director-in-charge and became the Deputy Director. Beyond framing the charges, Manvi had taken no steps in the enquiry before he ceased to be the Director-in- charge. All the witnesses were examined by Manvi after he ceased to be the Director-in-charge and after his reversion as Deputy Director."

6. In that case, the Director In-charge conducted enquiry after he

ceased to be the Director In-charge and after his reversion as Deputy

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Director. It was held that he was not authorised to conduct the enquiry

after he ceased to be the Director In-charge whereas, in the instant case,

Mr. K.M.Bhoyar who was one of the members of the Committee is in

continuous service and he did not cease to be a member of the Scrutiny

Committee because of completion of 11 months period and did not loose

the post of Assistant Commissioner, Social Welfare. He was possessing

the requisite educational qualifications and was promoted on the post of

Social Welfare Officer and given charge of Research Officer of Scrutiny

Committee. Mr.Bhoyar was thus, entitled to conduct the enquiry of the

petitioner. Moreover, this controversy may not be of much importance in

view of final order herein.

7. Learned senior counsel further placed reliance upon the

judgment in the case of Central Bank of India vs. C. Bernard, reported

in (1991) 1 SSS 319, wherein the enquiry was conducted by the

Inquiry Officer after his retirement from service. In the present case,

there was no such situation, the services of Mr. Bhoyar were continued

on same post.

8. Learned senior counsel placed reliance upon the judgment in the

case of Sayanna vs. State of Maharashtra and others, reported in (2009)

10 SCC 268. It is held that the Police Inspector of the Vigilance Cell had

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merely stated as a matter of fact that the word "lu" was subsequently

added while recording the caste of the appellant as Mannerwarlu in the

school register. The Police Inspector has not stated that the word "lu"

was interpolated by the appellant. Hon'ble Supreme Court took note of

possibility that the word "lu" was not mentioned at the time of recording

of the caste of the appellant and on being pointed out the correct

spelling of caste, the word "lu" was added. Addition of word "lu"

subsequently would not lead to an irresistible conclusion that the said

word was added by the appellant or at his behest.

9. The Hon'ble Apex Court found that the approach of the Scrutiny

Committee overlooking four old documents due to its findings that

addition of word "lu" after the word "Mannerwar" was tampered. It was

further held that it was not indicating any interpolation. The facts in the

case in hand are altogether different. Here, it is the case of the petitioner

that since, the forefathers of the petitioner had adopted the profession of

carpentry, the word "Sutar" is noticed in the old documents along with

caste 'Balai' whereas, according to the respondents, there is interpolation

of the entries in the register with regard to taking the entry of month

January in between February and March. So also cello-tape is

unnecessarily affixed on those entries. Few blank pages are left in the

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register prior to the entries relied upon by the petitioner.

10. Learned senior counsel placed reliance upon the judgment in the

case of Chandrashekhar Danial Gaikwad vs. State of Maharashtra and

others, reported in 2016 (1) Mh.L.J. 94, and submitted that in that case

a question before the Court was whether the petitioner and his family

belonged to 'Mahar' caste as petitioner's name was Danial and during his

childhood his father used to visit Church. In that case, this Court was of

the opinion that only because the petitioner and his father used to go to

Church for paying obeisance, that itself, cannot be a ground to hold that

the petitioner and his father have converted to Christianity. This Court,

in paragraph no.12, concluded thus,

"12. Therefore, the Committee ought to have considered the documentary evidence and should have placed greater reliance on the pre-Independence documents which would furnish a higher degree of probative value to the declaration of status of a case, as compared to post-Independence documents. In the aforementioned judgment, the Supreme Court observed that the affinity test may not be regarded as a litmus test for establishing the link of the applicant with Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a Scheduled Tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that in his present traits do not match his tribe's peculiar anthropological and ethnological traits, deity,

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rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim."........

11. In the instant case, learned senior counsel submitted that since

the petitioner and his forefathers in the family had adopted the

profession of Sutar (i.e. carpentry), the caste is mentioned as 'Sutar-

Balai', in the pre-independence documents, relied upon by the petitioner.

12. Mr.Kaptan, further, relied upon the judgment in Writ Petition No.

6925/2016 with Civil Application No.2158/2016 dated 16.12.2016

delivered by this Court. In that case, the Court opined that the

documents relied upon by the petitioner were old documents having

great probative value and document more than 30-years old, attracts

presumption under section 90 of the Evidence Act, 1872 and therefore,

the Committee before discarding these documents must adopt a cautious

approach.

13. Learned senior counsel contended that although the point as

regards dishonesty of the Scrutiny Committee with regard to the date of

decision is raised directly at the time of arguments, it is pure question of

law arising from records and, therefore, it can certainly be considered

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at the stage of hearing. He took assistance of the judgment in the case of

State of Uttar Pradesh and others vs. Dr.Anupam Gupta and others,

reported at 1993 Supp (1) SCC 594. Relevant portion of Paragraph

10 reads thus:

"10. .... We find no force in the contention of the State. Though it was never raised, nor argued, since it is a pure question of law arises from record, it can be gone into. But on careful consideration of the record, we find no force in the Doctor's contention."

14. In that case, for the first time, at the stage of arguments, it was

submitted that denial of admission in medical college for non-securing

50% cut off in the entrance examination is illegal. On this,it was objected

that the said contention was not raised in the High Court and for the

first time it could not be raised. It was held that though this contention

was never raised nor argued being a pure question of law arising from

record, it can be gone into. In the instant case, therefore, we are of the

opinion that we can certainly consider the question whether any order

was passed by the Scrutiny Committee on 31.12.2015, if the Roznama

(proceeding sheet) cannot be viewed as trustworthy document and what

is the effect of such order.

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15. So far as the contention of Mr.Kaptan with regard to the Roznama

is concerned, it would be discussed in later part of this judgment.

16. Learned senior counsel took us through various provisions

contemplated in 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 (hereinafter referred to as the "Rules of 2012")

and submitted that there should be deliberations amongst the members

of the Committee prior to the decision, which is lacking while taking

decision on caste claim of the petitioner. Finally, Mr. Kaptan urged that

the impugned order is liable to be quashed and set aside, it being

dishonest and contrary to law.

17. Per contra, learned counsel for respondent nos.6,7 & 11 Mr.

Narnaware countered that as per the provisions under Rule 18 of the

Rules of 2012, the view of two assenting members of the Scrutiny

Committee here is to be accepted as it is the order passed by the majority

of the Committee-members. He submitted that the doctrine of 'de facto'

applies as the petitioner has accepted the composition of the Committee

and allowed to pass the order. Therefore it should not lie in the mouth

of the petitioner that Mr.K.M. Bhoyar was incompetent and therefore,

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the enquiry vitiates. According to Mr. Narnaware all the documents

showing entries in the register regarding the caste claim of the

forefathers of the petitioner, are revenue documents which have no

probative value. The school records which are post-Constitutional

documents prevail over the revenue documents which show the caste of

the near relatives of the petitioner as 'Sutar-Balai'.

18. Learned counsel Mr. Narnaware sought assistance from the

judgment of the Hon'ble Apex Court, in the case of Ku.Madhuri Patil vs.

Addl. Commissioner, Tribal Development and others reported in AIR

1995 SC 94, more particularly para 10 thereof.

"10. .......The caste of the person, as stated earlier, is determined on the basis of the caste of their parents, basically for the reasons that the caste is acquired by birth. When the school record of the candidate's father shows his caste as Koli, the documents which the candidates have produced (documents quoted at Serial Nos. 3, 5 to 8, 11, 13 to 16) showing their caste as Mahadeo Koli cannot be relied upon. All these documents furnished by the candidates are those manipulated and fabricated with to knock of the seats in educational institutions defrauding the true Scheduled Tribes to their detriment and deprivation. As the school record of the candidate's father shows his caste as 'Koli', the caste certificates which have been issued to the appellants and their relatives by the Executive Magistrate, Greater

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Bombay (documents at Serial Nos. 9, 10, 12, 17 to 19) are without proper enquiry and investigation, besides being without jurisdiction. Its reiteration in service record would not carry any credibility or a ground to accept the caste as Scheduled Tribe."

19. Mr.Narnaware submitted that information given by the

educational institution is that uncle and father of the petitioner are

"Sutar". He invited our attention to the fact that brother of the

petitioner, Arun was issued the certificate as"Sutar"(OBC) on 10.1.2005

and, therefore, now the petitioner cannot claim his caste as 'Balai' (SC).

Finally, Mr Narnaware submitted that the certificate issued by the

Scrutiny Committee in respect of brother of the petitioner, namely, Arun

and his daughter Pallavi are without any vigilance enquiry. He

submitted that the directions in the case of Madhuri Patil are not

followed by the Scrutiny Committee.

20. Mr. Narnaware placed reliance upon the judgment in the case of

Mangesh Kashid vs. District Collector, Satara, reported in 2012 (5)

Mh.L.J. 473. Paragraph 50 thereof reads thus,

"50. The vigilance cell report is the integral and core of the verification process and if a validity certificate is to be issued to a candidate, then the requirement of calling for the vigilance cell report is must. Any deviation from this position will result in

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contravening the dicta of the Apex Court in the Madhuri Patil's case and Dayaram's case. According to us, Rule 12 does not dispense with calling for report from the vigilance cell. Rule 12 will have to be read in consonance with the judgments of the Apex Court in Madhuri Patil's case and Dayaram's case, and it cannot be interpreted in the manner contrary to the aforesaid judgments of the Apex Court. Thus the caste validity certificates which are issued without calling for the vigilance cell report cannot be considered as valid in the eyes of law, and suffer from jurisdictional error which goes to the root."

21. According to Mr. Narnaware, the vigilance cell report is the integral

part of the verification process and in the present case, the validity

certificate of the brother of petitioner-Arun and his daughter-Pallavi was

without any vigilance enquiry, hence the said validity certificate is bad

in law and not trustworthy.

22. Mr.Narnaware further placed reliance upon the judgment in the

case of Apoorva Vinay Nichale vs. Divisional Caste Certificate Scrutiny

Committee, reported in 2010(6) Mh.L.J.401. In that case, a submission

was made by learned amicus that Committee must in all cases issue

notice to the blood relatives who have wrongly or fraudulently obtained

the caste certificate or obtained the certificate without jurisdiction in

the Committee to grant it and initiate proceedings to cancel that

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certificate. Mr. Narnaware contended that once the caste certificate of

'Sutar' caste was issued to the brother of the petitioner and his daughter,

there is no question of issuing certificate of another caste i.e. 'Balai' to

the petitioner.

23. Learned counsel for respondent no.5, Mr.Wathore, submitted that

the certificate of brother of the petitioner, namely, Arun dated 10.1.2015

indicates that he is "Sutar" (OBC) caste. He submitted that since the

petitioner was to contest the election from Mehkar (District Buldana)

constituency, in the year 2006, he obtained certificate of Scheduled

Caste.

24. Mr. Wathore pointed out that there is no caste as "Sutar-Balai" in

the list of Scheduled Tribes mentioned in the Presidential Notification.

Mr.Wathore invited our attention to various entries in the revenue

register regarding caste of the petitioner dated 27.01.1912, +.12.1919

etc. wherein the entry dated 27.1.1912 is inserted in between

26.02.1912 and 28.03.1912 with different ink and cello-tape is affixed

in said entry, whereas entry dated +.12.1919 wherein the caste of the

great grandfather of the petitioner, namely, Bhagu Sutar Balai is shown

as 'Sutar-Balai' and that he gave birth to one daughter. On the said

entry, cello-tape is affixed. The entry dated +.08.1936 is the only entry

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with cello-tape. The entry dated 16.02.1966 appears to be in different

ink. According to Mr Wathore, all these entries are not reliable and as

such, no caste certificate as 'Balai' can be issued on the basis of these

documents. Mr.Wathore urged that petitioner is benefitted by these

entries and still no explanation comes forward with regard to the said

interpolation.

25. Learned Government Pleader Mrs. Bharati Dangre for respondent

nos.1, 2 and 4 contended that Shri K.M.Bhoyar, who is one of the

members of the Scrutiny Committee has fulfilled the criteria of

promotion and he was possessing the degree of B.A. Sociology and

hence he was promoted to the post of Social Welfare Officer and granted

charge of Research Officer. Thus, he is qualified for the said post. Mrs.

Dangre submitted that as per the directions of the Committee headed by

Additional Chief Secretary (Home), temporary promotion of 11-months

was granted to Mr. Bhoyar. One day's technical break was given to Mr.

Bhoyar on 30.09.2016 and his services are continued on promotional

post. According to her, Mr.Bhoyar was on promotional post and did not

cease to be member of the Scrutiny Committee because of completion of

11-months period. On the point of order passed by the Scrutiny

Committee, Mrs.Dangre did not seriously dispute that the Roznama

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dated 31.12.2015 gives an impression that the arguments were heard by

the Scrutiny Committee on 31.12.2015 and decision was delivered on

the same day.

26. Mrs.Dangre invited our attention to various registers which

indicated that cello-tape was affixed at the detriment of beneficial person

and on document 'Balai' word was overwritten. Mrs. Dangre stated that

the certificate of Arun and his daughter Pallavi were issued in the year

2009 without vigilance enquiry. However, only because the other

members of family were granted certificates without enquiry, those

certificates need not be relied upon, which show the caste as 'Balai'.

27. Mrs. Dangre placed reliance on the common order of this Court in

PIL Nos. 102/2013 and 11/2016 dated 15.04.2016, to contend that if a

candidate possesses pre-Constitutional documents showing him to be

belonging to a particular tribe, then such documents would have more

probative value and the candidate would be entitled to grant of validity

certificate. However, all these must precede the Vigilance Cell and home

enquiry. If, in the Vigilance Cell and home enquiry, any contra material is

found, then the Committee can always take the same into consideration.

28. On considering the rival contentions of the parties before

embarking the merits of the controversy, it would be advantageous to

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delve deep into Roznamas, with regard to the order passed by the

Scrutiny Committee.

29. On careful scrutiny of the order passed by the Scrutiny Committee,

it is apparent that the date of decision is mentioned as 31.12.2015. On

the top of the order, it is mentioned as "Per se: M.G.Gautam, Additional

Collector (Lower Grade) & President". It is signed by three Committee

members at the bottom of the decision i.e. (i)K.M.Bhoyar, Research

Officer and Member-Secretary, (ii) Sahebrao Laxmanrao Jadhav,Deputy

Commissioner and Member, (iii) S.G.Gautam, Deputy Collector(Lower

Grade and Chairman), all of Scrutiny Committee No.2, Akola. Below the

signature of Deputy Commissioner, Jadhav, it is mentioned that separate

order has been passed. It means that all these three members of the

Committee had passed the orders on 31.12.2015. Two of them signed

on the said order as they were in agreement and one of them passed the

dissenting order on the same day, separately. The separate order does not

depict date.

30. Now coming to the Roznama dated 30.12.2015, it speaks: "Heard

arguments of complainant". It stipulates that the arguments of the

complainant were heard on that day and the matter was adjourned to

31.12.2015. Significantly, the said Roznama simply bears the signature

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of one of the Committee-members. The Roznama dated 31.12.2015

speaks: "Heard the arguments of non-applicant. Closed for order." It

figures that the arguments were heard and the matter was closed for

order. All three members of the Committee signed on the order sheet.

One Advocate too signed on it. It is mentioned below the signature of

Chairman as 'Asahamat'(disagreed). It is also mentioned on the order-

sheet that the order is passed without any pressure and again the

Committee members signed below it and result is mentioned as

'Awaidh' (void). Below the said sentence the signatures were made there

and less space was left at the bottom of the paper. On plain reading of

Roznama 31.12.2015, it is surfaced that on 31.12.2015 the matter was

heard and on the same day two separate orders were passed - one

passed by two members and other passed by the third member of the

Committee who took a different view from other two members of the

Committee. It is also depicted on the order-sheet that the orders were

passed without getting pressurised by anyone.

31. Surprisingly enough, on the next page at reverse side, there is

Roznama dated 04.01.2016 which demonstrates that as the period

granted by the High Court is completing on 7th and as there is possibility

of requirement of more time to pass the order, a letter for grant of more

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time of 15-20 days to pass the order, is presented before the High Court.

The said Roznama was signed by S.L. Jadhav.

32. Thus, the fact that impugned order was not ready on 31.12.2015

first comes before this Court when Civil Application No.24/2016 in Writ

Petition No.1800/2014 was filed seeking extension of time. That

application is duly sworn by one Member supposed to decide the caste

claim on 7.1.2016. He states that little more time would be required to

decide it. Along with this C.A, order-sheet or Roznama of dates

30.12.2015, 31.12.2015 and 4.1.2016 is also annexed to show to this

Court that final arguments were already heard on 30.12.2015 and

31.12.2015, and the matter was closed for final orders on 31.12.2015.

Order-sheet dated 4.1.2016 reveals need of more time felt by the

Committee to pass the orders. Obviously, the final order was not ready

then. It was not ready when the application was listed before this Court

on 16.1.2016. But application was not pressed on 27.1.2016 indicating

thereby the order became ready between 16th to 27th January,2016. Still

as order was not ready by 31.12.2015, extension was essential.

Application was not pressed obviously as the order was ante-dated.

Order communicated to the petitioner is dated 31.12.2015. In copy of

the order-sheet supplied to this Court as part of C.A., after order-sheet

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dated 31.12.2015 recording closing of the matter for final order appears

on the last but-one page of the order-sheets side. On reverse thereof,

order-sheet dated 4.1.2016 has been recorded which justifies demand

for extension of time and need of moving C.A. in High Court. Order-

sheets side of the record now shows one more order-sheet of

31.12.2015 date only added below the order-sheet dated 31.12.2015

noting event of passing of final order on that date only. Thus, now one

gets two separate order-sheets for the date 31.12.2015. This later

addition or the other order-sheet dated 31.12.2015 is written in

remaining space left below at the bottom of the last but-one page of the

order-sheet supplied with C.A. On reverse of this page, the order-sheet

dated 4.1.2016 was/is already written and hence, small space at the

bottom of said page between the earlier order-sheet dated 31.12.2015

and order-sheet on next page has been utilized to create a show that

final order was ready on 31.12.2015 itself. This introduced order-sheet

shows the space constraint experienced by the manipulators and words

"cancelled" are added over their signature again later on by the members

in majority. Dissenting member in minority has overwritten his dissent

on the text of this later order-sheet and mentioned that a separate order

was passed by him. Below his note, he has placed his sign. This remark

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of dissent again reaffirms the space constraint. In any case, if the order

was ready on 31.12.2015 itself, the order-sheet dated 4.1.2016 was not

required to be written at all. Apparent inconsistency in the second order-

sheet dated 31.12.2015 and order-sheet dated 4.1.2016 reveals

fabrication and tampering with original records by the members of the

Scrutiny itself.

33. Order dated 31.12.2015 shows at its opening the words "per

S.G.Gautam" while below that the text of order passed by the majority

appears. Shri Gautam has passed the minority order. This material or

then error also casts cloud on procedure of Scrutiny Committee.

34. Ante-dating the order itself raises few vital questions. Order-sheet

dated 4.1.2016 does not reveal either unanimity or any difference of

opinion amongst the members of the Scrutiny Committee. It does not

bring on record any premeditation or the consultation by the Committee

Members with each other. If the deliberations were already held on

31.12.2015 itself and exercise of passing of two final orders had become

unavoidable, that would have been the best reason to seek an extension

from this Court and would have definitely surfaced in the order-sheet

dated 4.1.2016. Order-sheet dated 4.1.2016 establishes falsehood in the

stand of the Scrutiny Committee that its final orders, of majority as also

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the dissenting one, were ready on 31.12.2015.

35. This discussion rules out any meeting of minds of the three

Committee members and effort by them to use their collective wisdom

to resolve the controversy. On the contrary, it proves that there was no

previous deliberation amongst them. Not following the mandate of Rule

17 of the Rules of 2012 and not mentioning the name of member to

whom the task of writing the majority view was assigned becomes

significant in this backdrop. When the date of impugned order itself

becomes doubtful and the members go to the extent of fabricating the

order-sheets, it is evident that the three Scrutiny Committee members

never sat together to ponder over the caste claim. Two members on same

side agreed to a order which did not get any supporter. We, therefore,

find it not necessary to dilate more on this fact. Facts at hand

unequivocally demonstrate that in this matter, there was no effort

whatsoever to apply mind together and to reconcile, which elements

are the soul of joint adjudication process.

36. Fabrication of the order-sheet or then act of ante-dating the final

order all show an attempt to interfere with the sanctity of the records of

a quasi-judicial authority. The tampering has been used while not

pressing the application for extension of time moved in disposed of Writ

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Petition by the Scrutiny Committee. The same is also put to use before us

to show that said order was ready on 31.12.2015. Marathi word

"Amanya" (not agreed) added above their signatures by the two

Members constituting the majority and Marathi word 'Asahamat'(dissent)

with remark that a separate order in support of dissenting view was

passed added by the third member, all tend to paint a false picture.

Tampering with records by the members of the Scrutiny Committee and

need therefor, itself pose a serious doubt on the functioning and

independence of the Committee. Rules of 2012 contain an elaborate

procedure to infuse transparency in the verification process but these

members have killed that object and purpose. Serious cognizance of the

entire affair therefore, needs to be taken.

37. From the above-said Roznamas and the records of the W.P.No.

1800/2014 and more particularly, the Roznama dated 31.12.2015 the

entire proceedings before the Scrutiny Committee with regard to the

passing of order while deciding caste claim of the petitioner, appear to be

without application of mind and meetings of minds of all three members

of the Scrutiny Committee.The Roznama dated 31.12.2015 demonstrates

the dishonesty on the part of the Committee-Members who signed the

Roznama at a later stage. After passing the order, later on and pretending

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as if the order was passed on 31.12.2015 the order passed by the

Scrutiny Committee does not inspire confidence.

38. At this stage, it would be appropriate to go through the Rules of

2012. Rule 17 postulates the procedure of the Scrutiny Committee prior

to issuing of the caste validity certificate. Sub-rule(5) of Rule 17

contemplates that the Roznama of the Scrutiny Committee shall be self

evident as to what transpired on a particular day and it shall be signed

by all the members of the Scrutiny Committee.

39. It is evident that the Roznama dated 30.12.2015 is signed by

only one member of the Committee contrary to the above-said sub-rule

(5) Rule17.

Rule 17 sub-rules (11), (d), (e). (f) of the Rules of 2012 read as under :

"(d) after conclusion of the hearing of the case, the work of writing of the decision shall be assigned to one of its member by the Scrutiny Committee;

(e) in case of difference of opinion amongst the members of the Committee, on the main order of majority, the dissenting member shall write his separate order;

(f) The name of member of Committee to whom work of writing final order was assigned, shall be mentioned in the roznama. Moreover, front page of final order shall disclose the date

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of the order."

40. From the Roznama dated 31.12.2015, it is not clear as to which

member of the Committee, the work of writing decision was assigned.

The above-quoted rule reveals that in case of difference of opinion

amongst the members of the Committee on the majority decision, the

dissenting member should write his separate order. It means that there

has to be a consultation and discussion of all three members of the

Committee and there has to be meeting of minds for coming to a

conclusion.

41. As discussed above, Roznama dated 30.12.2015 reveals only one

signature which indicates that on that day, the matter was heard by

only one member of the Committee. It is doubtful whether the meeting

of minds of members of the Scrutiny Committee and consultation

amongst them as desired by the legislature while framing the Rules,

took place. From the Roznama dated 31.12.2015 it is vividly visible that

there was no discussion amongst the members of the Scrutiny

Committee on the subject and directly the dissenting member showed

his disagreement, without passing the order by the majority members.

Thus, Clause17 sub-rule (11), (d), (e) and (f) and provisions mentioned

therein are not complied with.

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42. Further, Roznama dated 4.1.2016 clarifies that no order was

passed by the Scrutiny Committee on 31.12.2015. It was not proper on

the part of the dissenting member of the Committee to write his

disagreement as 'Asahamat' on the order sheet, without there being

judgment of the majority of members of the Committee on 31.12.2015.

43. On the point of object of deliberation or consulting each other, a

useful reference can be made of the judgment of the Hon'ble Supreme

Court in the case of State of Gujarat vs. Justice R.A. Mehta (Retd) and

others, reported in (2012) 3 SCC 1. Para Nos. 25, 26 & 32 of the said

judgment it has been held :

"25. ....The object of consultation is to render its process meaningful that it may serve its intended purpose. Consultation requires the meeting of mind between the parties that are involved in the consultative process on the basis of material facts and points in order to arrive at a correct or at least a satisfactory solution. If a certain power can be exercised only after consultation such consultation must be conscious, effective, meaningful and purposeful. To ensure this, each party must disclose to the other all relevant facts for due deliberation. The consultee must express his opinion after complete consideration of the matter on the basis of all the relevant facts and quintessence. ....

26. ....Consultation or deliberation can neither be complete nor effective before the parties thereto make their respective points of view known to be other or others and discuss and examine the

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relative merits of their views. If one party makes a proposal to the other, who has a counter-proposal in mind which is not communicated to the proposer, a direction issued to give effect to the counter proposal without any further discussion with respect to such counter-proposal with the proposer cannot be said to have been issued after consultation.

32. ...The meaning of "consultation" varies from case to case, depending upon it fact situation and the context of the statute as well as the object it seeks to achieve. Thus, no straitjacket formula can be laid down in this regard. Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess in relation to each other and then arriving at a decision."

44. In this context, reference can be made to the judgment of the

Hon'ble Apex Court in the case of Indian Administrative Service vs.

Union of India and others : 1993 Supp (1) SCC 730:

"26. (1) Consultation is a process which requires meeting of minds between the parties involved to evolve a correct or at least satisfactory solution. There should be meeting of mind between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory. (2) When the offending action effects fundamental rights or to

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effectuate built in insulation, as fair procedure, consultation is mandatory and non-consultation renders the action ultra vires or invalid or void.

(3) When the opinion or advice binds the proposer, consultation is mandatory and its infraction renders the action or order illegal. (4) When the opinion or advice or view does not bind the person or authority, any action or decision taken contrary to the advice is not illegal, nor becomes void.

(5) When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted, the prior consultation is only directory. The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken, be put to notice of the authority or the persons to be consulted; have the views or objections, taken them into consideration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstance it amounts to an action "after consultation".

(6) No hard and fast rules could be laid, no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place. It is for the Court to determine in each case in the light of its facts and circumstances whether the action is "after consultation"; "was in fact consulted" or was it a "sufficient consultation".

45. In present case, after conclusion of hearing, three Committee-

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members should have in a meeting, exchanged and shared their views.

They ought to have discussed their thoughts together to find out whether

they were all together. They should have attempted to iron out their

differences and to reach a unilateral verdict. Being responsible Officers

on a quasi-judicial body undertaking caste adjudication, a mature

approach was must. The documents presented before us as order of

majority dated 31.12.2015 or as dissenting order dated 31.12.2015, do

not qualify as "orders" of the Scrutiny Committee. The entire exercise of

three-members of Committee, after closing the caste claim for orders

on 31.12.2015, amounts to a fraud on adjudication and is

unsustainable. We, accordingly, quash and set aside the so called

impugned order dated 31.12.2015 and restore proceedings back to the

file of respondent no.2.

46. This Court will be failing in its duty if action under Section 195

with Section 340 Criminal Procedure Code, is not taken against the

three-members who have signed the order dated 31.12.2015. Prima

facie, an offence u/ss. sections 192 and 193 Indian Penal Code

committed by them, is demonstrated on records.

47. Issue notice to these members to show cause, returnable on

24.04.2017. Respondent nos.1 and 2 to complete service of notice upon

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them despite fact whether they are continuing as or have ceased to be

such members or have retired.

48. After hearing the rival contentions of both the sides, we are

convinced that there was no meeting of minds of the members of the

Scrutiny Committee prior to passing of the order while deciding the

caste claim of the petitioner. So also, there is violation of Rules

contemplated in Rules of 2012 while adopting the procedure and

passing the order by the Scrutiny Committee, while deciding the caste

claim of the petitioner. Hence, the Scrutiny Committee should consider

all the rival contentions raised by the learned counsel and apply its mind

on consultation with each other and decide the caste claim of the

petitioner on the above lines. Thus, without observing anything more on

merits of the controversy and keeping all rival contentions open, we pass

the following order :-

                                          O    R D E R 

(i)       The impugned order dated 19.01.2016 passed by the  Respondent 

No. 2-Scrutiny Committee is quashed and set aside.

(ii) The caste claim of the petitioner is remanded to the respondent

no.2-Committee for a fresh consideration of material on record on merits

and in accordance with law.

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(iii) The Committee shall give an opportunity of hearing to the

petitioner as well as respondents and pass a reasoned order within a

period of six months from date of communication of this order.

(iv) The parties to appear before the respondent No.2-Scrutiny

Committee on 10 th April, 2017.

(v) Civil Application Nos. 1227/2016, 1564/2016 and 1779/2016 do

not survive. They are also disposed of.

(vi) Notice to show cause issued to the three Committee members who

have signed the second order sheet dated 31.12.2015 and the impugned

order, is made returnable on 24.04.2017.

(vii) Registry to register separate proceedings in that respect.

(viii) Records of present petition, records of Writ Petition No.1800/2014

with Civil Application No. 24/2016 therein, shall be preserved for use

in Sec.195/Sec.340 Cr.P.C. proceedings.

(ix) Rule made absolute in the aforesaid terms. However there shall

be no order as to costs.

                   JUDGE                               JUDGE
sahare