{1} wp127007.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1270 OF 2007 Sow. Harshali w/o Prashas Thakur, age: 27 years, Occ: Household, R/o Venkatesh Nagar, Koregaon Road, Parbhani, Tq. & District Parbhani. Petitioner Versus 1 Deleted as per Court’s order dated 01.03.2007. 2 The Scheduled Tribe Caste Certificate Scrutiny Committee, Aurangabad Division, Aurangabad, through its Member Secretary. 3 Collector, Parbhani District, Parbhani. 4 Deputy Collector (EGS), Parbhani, Tq. & District Parbhani. 5 Parbhani Municipal Council, Parbhani, Tq. & Dist. Parbhani, through its Chief Officer. 6 State Election Commission, Maharashtra State, through its Commissioner, Madam Cama Road, Administrative Building, Opposite Mantralaya, Mumbai-32. Respondents {2} wp127007.odt Mr. M.S.Deshmukh, advocate holding for Mr.S.S.Gangakhedkar, advocate for the petitioner. Mr. R.P.Phatke, A.G.P. for Respondents No.2, 3 and 4. Respondent No.1 – deleted. Respondents No.5 & 6 absent, though served. CORAM : D.B.BHOSALE AND R.M.BORDE, JJ. DATE : 08 th February, 2011 ORAL JUDGMENT (Per R.M.Borde, J.): 1 Heard Shri M.S.Deshmukh, learned Counsel holding for Shri S.S.Gangakhedkar, advocate for the petitioner and Shri R.P.Phatke, learned A.G.P. For Respondents No.2, 3 and 4. 2 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 3 Learned Counsel appearing for the petitioner, on instructions, states that the petitioner does not wish to press the petition so far as prayer clause (B) is concerned and restricts her challenge only in respect of legality and correctness of the order passed by the Scheduled Tribe Scrutiny Committee, Aurangabad Division, Aurangabad, dated 31.01.2007. 4 The petitioner is an elected Councillor of Municipal Council, Parbhani. The petitioner claims to be belonging to {3} wp127007.odt “Thakur”, a scheduled tribe. The petitioner has been elected as Councillor on a reserved seat earmarked for Scheduled Tribe category. The certificate produced by the petitioner along with her nomination paper, came to be forwarded for verification to the Scrutiny Committee i.e. Respondent No.2, as mandated by Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. 5 The Scrutiny Committee, after considering the evidence placed on record by the petitioner, was pleased to turn down the claim put forth by the petitioner and directed invalidation of the tribe claim of the petitioner. 6 The only objection to the legality and correctness of the order, passed by the Scrutiny Committee, raised by the petitioner, is based on non compliance of provisions of Rule 12(8) of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003 (for short, “the Rules of 2003”), which is reproduced as below: 12 Procedure to be followed by Scrutiny Committee. (8) If the Scrutiny Committee, on the basis of the Vigilance Cell report and other documents available, is not satisfied about the notice to the applicant and also serve a copy of the report of the Vigilance Officer by registered post with {4} wp127007.odt acknowledgement 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. 7 According to the petitioner, although it is noted in the judgment that the vigilance cell inquiry was conducted and the report was submitted to the Scrutiny Committee on 28.12.2006, the copy thereof was not transmitted to the petitioner and as such, she was deprived of the opportunity to raise objection to the report of the vigilance cell inquiry. It is also noted in the order passed by the Committee, that on receipt of the report of vigilance cell, hearing of the matter was prescribed on 18.01.2007. Sub-rule (8) of Rule 12 mandates that the report of vigilance cell shall be transmitted to the applicant by registered post with acknowledgement due. The notice of inquiry, which is expected to be issued by the Scrutiny Committee, shall indicate that the representation or reply, to the vigilance cell inquiry report, may be submitted within fifteen days from the date of receipt of notice and in any case not later than thirty days from the date of receipt of the notice. In the instant matter, on perusal of the order, it is evident that the date of submission of the vigilance cell report to the Scrutiny Committee is 28.12.2006 and the next date prescribed for {5} wp127007.odt hearing was 18.01.2007 i.e. within twenty days from the date of presentation of the report. 8 Learned Additional Government Pleader, appearing for Respondents No.2, 3 and 4, on scrutiny of the original record maintained by the Scrutiny Committee, is unable to point out any material to reach the conclusion that the report of vigilance cell inquiry was received by the petitioner. In view of this fact, the contention raised by the petitioner that she is not in receipt of the report of vigilance cell inquiry shall have to be accepted. The time period allowed for submitting the reply, as is evident from the date of hearing noted in the order passed by the Scrutiny Committee, being 18.01.2007, is also in contravention of sub-rule (8) of Rule 12 of the Rules of 2003. It is apt, in this regard, to refer to the observations of the Apex Court in the matter of Kumari Madhuri Patil & another Vs. Additional Commissioner, Tribal Development & others, reported in (1994) 6 SCC 241: “The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be “not genuine” or `doubtful’ or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should {6} wp127007.odt indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.” 9 For the reasons recorded above, the order passed by the Scrutiny Committee, invalidating the tribe claim of the petitioner, is vitiated on account of non observance of provisions of sub-rule (8) of Rule 12 of the Rules of 2003. The order passed by the Scrutiny Committee is, therefore, liable to be quashed and set aside. 10 We, therefore, pass the following order: {7} wp127007.odt A) The order passed by the Scheduled Tribe Scrutiny Committee, Aurangabad Division, Aurangabad, dated 31.01.2007, invalidating the tribe claim of the petitioner, is quashed and set aside and the matter is remitted back to the Committee for taking decision afresh, after extending an opportunity of hearing to the petitioner. B) The petitioner shall cause her appearance before the Committee on 22nd March, 2011 and as such, requirement of issuing notice for securing presence of the petitioner before the Scrutiny Committee, is dispensed with. C) The Scrutiny Committee shall make available the report of vigilance cell inquiry to the petitioner on the given date and shall grant sufficient time, as required under sub-rule (8) of Rule 12 of the Rules of 2003, to facilitate her to submit her comments/objections to the vigilance cell inquiry report. D) The Scrutiny Committee shall thereafter proceed to decide the matter, after extending an opportunity of hearing to the petitioner. The Scrutiny Committee shall render decision in the matter, as expeditiously as possible, preferably, within a period of six months from today. {8} wp127007.odt 11 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE D.B.BHOSALE JUDGE JUDGE adb/wp127007