( 1 ) wp1150.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1150 OF 2010 Kum. Lubna Urooj d/o. Sk. Md. Kaleem Parvez .. Petitioner Age. 18 years, Occ. Education, R/o. Itwara Bazar, Near Milan Tent House, Nanded, Dist. Nanded. Versus 1. The State of Maharashtra .. Respondents Through Principal Secretary, Social Justice, Cultural Affairs & Sport Department, Mantralaya, Mumbai – 32. 2. Scheduled Caste, Vimukta Jati, Other Backward Class and Special Backward Category, Divisional Caste Certificate Scrutiny Committee No.2, Aurangabad Division, Latur, Through its Member Secretary, 3. Dean, Mahatma Gandhi Missions’ Dental Medical College & Hospital Sector 18, Kamothi, New Mumbai – 410 209. 4. Maharashtra University of Health Science Through its Registrar (Eligibility Section) Mhasrul-Vani Road, Nashik – 422 004. ( 2 ) wp1150.10 Mr. M.S. Deshmukh h/f. Mr. T.M. Venjane, Advocate for the petitioner. Mr. R.P. Phatke, A.G.P. for respondent Nos. 1 & 2. Mr. S.R. Bharad h/f. Mr. V.D. Salunke, Advocate for respondent No.3. Mr. K.D. Bade-Patil, Advocate for respondent No.4. CORAM : SMT. NISHITA MHATRE & S.S. SHINDE, JJ. DATED : 06.04.2011 J U D G M E N T [PER – S.S. SHINDE,J.] :- 1. Rule. Rule made returnable forthwith. Heard finally by consent. 2. This writ petition is filed challenging the decision of respondent No.2 – Scheduled Caste, Vimukta Jati, Other Backward Class and Special Backward Category, Divisional Caste Certificate Scrutiny Committee No.2, Aurangabad Division, Latur, dated 30.12.2009, thereby invalidating the claim of the petitioner that she belongs to “Chapparband”, Vimukta Jati (V.J.). ( 3 ) wp1150.10 3. The petitioner herein received Caste Certificate from the Sub-Divisional Officer, Nanded, certifying herself as belonging to Chapparband V.J. The petitioner herein submitted her Caste Certificate along with necessary documents for verification before respondent No.2. On 11.11.2009 the Vigilance Cell recorded statement of the father of the petitioner and also statements of other persons from the vicinity of residence of the petitioner. It is case of the petitioner that the Vigilance Cell was not constituted in accordance with relevant guidelines. It is further case of the petitioner that the Vigilance Cell report dated 11.11.2009 was submitted only under the signature of Police Inspector and not by the Dy. Superintendent of Police as well as Research Officer, who is an expert. It is case of the petitioner that the father of the petitioner submitted written information, inter alia, providing traits, characteristics etc. pertaining to Chapparband V.J. On 30.11.2009 a Show Cause Notice was issued to the petitioner. In pursuance of the Show Cause Notice, the petitioner filed her explanation/reply on 21.12.2009. On 30.12.2009, the petitioner herein submitted evidence before respondent No.2 ( 4 ) wp1150.10 in the form of certificates of validity along with affidavit of the blood relatives from the paternal side of the petitioner. It is case of the petitioner that old documents pertaining to the year 1956-57 were also placed on record before respondent No.2. On 30.12.2009 the paternal uncle of the petitioner was interviewed by the committee. On the same day, respondent No.2-Committee invalidated claim of the petitioner. Hence, this writ petition. 4. Learned Counsel appearing for the petitioner submitted that the Committee, who invalidated the claim of the petitioner, was not properly constituted in as much as same was headed by the Additional Collector (Selection Grade), who is not an officer of the rank of Additional Commissioner, as per the directives of the Supreme Court in the matter of Kumari Madhuri Patil and Anr. V/s. Addl. Commissioner, Tribal Development & Ors., AIR 1995 S.C. 94. It is further submitted that the Vigilance Cell, which should consist of the Dy. Superintendent of Police as well as Research Officer, did not include the Research Officer and the Dy. Superintendent of Police was not heading the said ( 5 ) wp1150.10 Vigilance Cell. Therefore, the report of the Vigilance Cell cannot be relied upon. It is further submitted that the Vigilance Cell has not recorded statement of the persons residing in the vicinity of residence of the petitioner. It is further submitted that the Scrutiny Committee did not consider and appreciate the reply filed by the petitioner to the report of Vigilance Cell enquiry as well as written information submitted by father of the petitioner in respect of traits, characteristics etc. pertaining to Chapparband V.J. It is further submitted that vital piece of evidence in the form of affidavit along with certificate of validity issued in favour of blood relatives of the petitioner is discarded without issuing notices to those validity holders. They were not called upon by the committee or no summons was issued to them to secure their presence and record their statements. Therefore, according to the Counsel for the petitioner, the decision of respondent No.2-Committee is vitiated. 5. Learned Counsel for the petitioner placed reliance on the judgments of this Court as well as Hon’ble Supreme ( 6 ) wp1150.10 Court to contend that where the caste claim of a candidate has been scrutinized and accepted and one committee has given a finding about the validity of the caste, another committee ought not to refuse the same status to her/her blood relative who applies for validation of caste claim. Learned Counsel further placed reliance on the reported judgment of this Court in Ashwini Anil Chavan V/s. State of Maharashtra & Ors., 2006 (4) Mh.L.J. 415 and submitted that when there is no discussion on facts or discussion on merits, in that case such decision of the Committee cannot be sustained. Learned Counsel further placed reliance on unreported judgment of this Court in the case of Shaikh Imran s/o. Shaikh Mohiuddin V/s. The State of Maharashtra & Ors. (W.P. No. 1949 of 2004 – Aurangabad Bench) and submitted that Section 9 of the Caste Verification Act empowers the committee to record evidence by issuing witness summons and if the Committee had any doubts regarding the relationship of relatives of the petitioner, the Committee ought to have issued witness summons to those relatives whose caste certificate has been validated by the Committee. Learned Counsel for the petitioner further placed reliance on the reported judgment of this Court in the case ( 7 ) wp1150.10 of Shivaji Shankar Konkewad V/s. State of Maharashtra & Ors., 2009 (1) Mh.L.J.943 and submitted that if the Vigilance Cell report is not in terms of Rule 12 (3) of the Rules, then in that case, the decision of the Scrutiny Committee is liable to be set aside. He further placed reliance on reported judgment of this Court in the case of Sarangappa s/o. Siddeshwarappa V/s. State of Maharashtra & Ors., 2002(3) Mh.L.J.290 and submitted that merely because the document on which reliance is placed by the petitioner is not registered, there is no ground to disbelieve said document. The learned Counsel further submitted that the Vigilance Cell and also the Committee was not properly constituted in accordance with the procedure streamlined in the case of Kumari Madhuri Patil (Supra). Therefore, the Counsel appearing for the petitioner would submit that the decision of the Caste Scrutiny Committee is vitiated. Therefore, relying on aforesaid arguments, the Counsel for the petitioner submitted that the impugned decision of respondent No.2-Committee cannot be sustained. Therefore, the same deserves to be set aside. Learned Counsel for the petitioner further submitted that if this Court comes to the conclusion to remand the matter back ( 8 ) wp1150.10 to respondent No.2-Committee for decision afresh, in that case, interest of the petitioner may be protected till the decision is rendered by respondent No.2-Committee. 6. On the other hand, learned Counsel appearing for respondent No.2-Committee has submitted that the Committee in its decision has given cogent reasons to invalidate the claim of the petitioner that she belongs to Chapparband V.J. Therefore, this Court may not interfere in the decision of respondent No.2-Committee. It is further submitted that the petitioner could not prove her blood relationship with other relatives whose caste claim is validated by respondent No.2- Committee and therefore respondent No.2-Committee has rightly invalidated the claim of the petitioner that she belongs to Chapparband V.J. Therefore, he prayed that the petition may be dismissed. 7. Learned Counsel appearing for respondent No.4- Maharashtra University of Health Science, invited our attention to the affidavit-in-reply filed on behalf of respondent No.4 and submitted that the petitioner is only ( 9 ) wp1150.10 entitled to get admission in 2nd year B.D.S. Course w.e.f. 4th January, 2011 i.e. the day on which result was declared. He further submitted that the permission to prosecute the 2nd year B.D.S. Course without knowing the result of 1st year B.D.S. cannot be considered. 8. We have given due consideration to the submissions of the respective Counsel appearing for the respective parties. We have taken into consideration the grounds in the petition and the decision of respondent No.2-Committee. We are of the opinion that the impugned decision suffers from non-application of mind. There are insufficient reasons for discarding evidence produced by the petitioner in the nature of affidavits of the relatives from paternal side, whose claims have been validated by the Caste Scrutiny Committee. On perusal of the impugned decision, we find that the Committee has not properly considered and appreciated the vital piece of evidence in the form of Certificate of Validity along with the affidavit filed by blood relative (paternal cousin) of the petitioner. From perusal of the decision of respondent No.2-Committee, it is abundantly clear ( 10 ) wp1150.10 that the Committee has not given sufficient reasons, why validity certificate of the relatives of the petitioner from the paternal side cannot be relied upon. The petitioner did produce on record genealogy and also affidavit of a relative, namely, Nujhat Anjum d/o. Mohammad Jilani. It is not in dispute that the Committee validated the claim of Nujhat Anjum that she belongs to Chapparband V.J. and to that effect affidavit was filed by Nujhat Anjum on record. In the said affidavit relationship with the petitioner was stated. From perusal of the decision of the Committee, it appears that said document was placed at Sr.No.10. The certificate was issued in favour of said Nujhat Anjum that she belongs to Chapparband V.J. While discarding the affidavit of said Nujhat Anjum, we find that no specific reasons are recorded by respondent No.2-Committee. There is also another document at Sr. No.18 in the nature of Validity Certificate issued in favour of Sima Shahin d/o. Mohammad Makhbul Salim dated 3rd August, 1993 that she belongs to Chapparband V.J. It further appears that Sima Shahin has also filed affidavit on 16th December, 2009, stating therein blood relationship with the petitioner. From perusal of the impugned decision, it ( 11 ) wp1150.10 clearly emerges that the Committee has not assigned any specific reasons for discarding the evidence of Sima Shahin d/o. Mohammad Makhbul Salim. 9. We find considerable force in the arguments advanced by learned Counsel for the petitioner that the Vigilance Cell was not properly constituted in accordance with the procedure streamlined in the case of Kumari Madhuri Patil (Supra) and said Vigilance Cell was not headed by Dy. Superintendent of Police. Learned Counsel for the petitioner has invited our attention to the unreported judgment of this Court in the case of Rohit s/o. Ranjeetsingh Rathod V/s. The State of Maharashtra and Ors. (W.P. No. 2527 of 2009 – Nagpur Bench). This Court in the said judgment has taken a view that the Committee shall comprise of Additional Commissioner (Revenue) as Chairman. It is not open for the State Government to constitute the Committee with the Additional Collector of the District as a Chairman in absence of any such provision in the Act or the Rules. 10. Therefore, taking overall view of the matter, in ( 12 ) wp1150.10 our opinion, the decision of respondent No.2-Committee cannot be sustained. 11. The petition is allowed. The matter is remanded to the Scrutiny Committee to decide afresh as to whether the petitioner belongs to Chapparband – Vimukta Jati category. The Scrutiny Committee shall decide this issue by July, 2011. The petitioner shall appear before the Scrutiny Committee on 20th April, 2011. 12. The petitioner is prosecuting her degree in dentistry in Mumbai. She has been permitted to appear for the first year B.D.S. examination by orders of this Court. In respect of the second year, we have already passed an order on 17.03.2011, directing respondent Nos. 3 & 4 to permit the petitioner to fill in her examination form for the second year B.D.S. examination and to take further steps to enable the petitioner to appear for the examination. Accordingly, the University shall issue a hall ticket in favour of the petitioner, so that she can appear for the second year B.D.S. examination, which would be held in either ( 13 ) wp1150.10 May or June of 2011. 13. Appearance at the examination will not create any equities in favour of the petitioner if the Scrutiny Committee decides that she is not from the Chapparband – Vimukta Jati. If her caste claim is invalidated, the petitioner will not be able to claim that since she has completed two years of the B.D.S. Course, because of orders of this Court, she should be permitted to appear for the third year B.D.S. Course. 14. Rule made absolute accordingly. 15. Copy of this order duly authenticated by the Court Sheristedar of this Court be provided to the learned Counsel for the parties to act upon. [S.S. SHINDE, J] [SMT. NISHITA MHATRE,J.] snk/2011/APR11/wp1150.10