1 wp107.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 107 OF 2010 Shrikant Bhimrao Kongalwar, Age : 21 years, Occ : Education, R/o Degloor, Tq. Degloor, Dist. Nanded. ..PETITIONER -VERSUS- 1. The State of Maharashtra, Through Principal Secretary, Tribal Development Department, Mantralaya, Mumbai. (Copy to be served through office of Govt. Pleader, Bombay High Court, Bench at Aurangabad). 2. Scheduled Tribe Certificate, Scrutiny Committee, Aurangabad Division, Aurangabad, Through its Vice- Chairman. RESPONDENTS ..... Shri M.S. Deshmukh, Advocate for petitioner. Shri V.B. Ghadge, A.G.P. for respondent/State. Shri R.P. Phatke, Advocate for respondent no.2. ..... (CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. Judgement reserved on : 30th June, 2011 Judgement pronounced on : 12th August, 2011 JUDGEMENT (PER SMT. MHATRE, J.) 1. Rule. Rule made returnable forthwith, by consent of the parties. 2 wp107.10 2. The challenge in the present Petition is to the rejection of the claim of the petitioner that he belongs to the `Mannerwarlu", Schedule Tribe. Besides challenging the order of the Scrutiny Committee on merits, the petitioner has contended that the decision has been rendered by an invalidly constituted Scrutiny Committee, and therefore, the decision is non est. 3. The brief facts in the present case are as follows : The petitioner claims that he belongs to the `Mannerwarlu' scheduled tribe based on the certificate issued to him on 20th August, 2003 by the Competent Authority. The Scrutiny Committee was constituted vide notification dated 4th June, 2003 and the Corrigendum dated 23rd June, 2003, in accordance with the provisions 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 Act, 2000 (Hereinafter referred to as "the said Act"). The petitioner submitted his certificate for validation before the Scrutiny Committee along with various documents, including two affidavits and the certificates of validity issued in favour of his paternal relatives, in support of his 3 wp107.10 contention that he belongs to the "Mannerwarlu" tribe. The Vigilance Cell submitted its report on 29th August, 2007. The Scrutiny Committee by its impugned order dated 15th June, 2009 has rejected the claim of the petitioner and invalidated his tribe claim. 4. Shri Deshmukh, the learned Advocate appearing for the petitioner, submitted that the Scrutiny Committee, which has passed the impugned order, was not constituted as per the Notification dated 4th June, 2003 and the Corrigendum issued on 23rd June, 2003 and therefore not valid. 5. Under Section 6 of the said Act, the State Government is empowered to constitute Scrutiny Committees for verification of the caste certificates issued by the Competent Authority under section 4(1) of the Act to any person. The jurisdiction of such committees is to be notified. Accordingly, the Tribal Development Department published a notification in the official Gazette dated 4th June, 2003, constituting six Scheduled Tribes Certificate Scrutiny Committees through out the State of Maharashtra. One such Committee was constituted for the Aurangabad region. The constitution of the Aurangabad Committee has been stipulated as follows : 4 wp107.10 1. The Commissioner/Director for ... Chairman Tribal Research and Training Institute, Pune. 2. Joint Director, Tribal Research ... Vice Chairman. and Training Institute, Pune. 3. Deputy Director (Reasearch) ... Member Secretary. 4. Senior Research Officer ... Member 5. _______ ... Member. It appears that this blank in serial number no. 5 above has been filled in by the Corrigendum dated 23rd June, 2003 and sub-entry no.5 is to be read as "(5) Research Officer". 6. The impugned order indicates that the matter has been decided by three members of the Scrutiny Committee, namely, the Research Officer, the Deputy Director (Research) and the Joint Commissioner, Tribal Research and Training Institute, Pune. Indisputably, the Coram for the Committee being of three members, the Chairman of the Committee was not present to decide the matter. 7. In the present case, one D.P. Jagtap, who was the Senior Research Officer of the Committee, was conferred the powers of 5 wp107.10 the Member Secretary, in the absence of the Member Secretary. Simultaneously, one M.G. Navghare was named as the Research Officer and included as a Member of the Scrutiny Committee by Notification dated 11th January, 2009. He was an Administrative Officer from the Commissionerate of Tribal Development. 8. The submission of Shri Deshmukh, the learned Advocate for the petitioner, is that neither D.P. Jagtap nor M.G. Navghare, had the requisite qualifications to act as Member Secretary or Senior Research Officer, respectively. 9. The qualifications for appointment to the post of Senior Research Officer, who is attached to the Scrutiny Committee, have been provided in the Notification dated 16th May, 2006. The eligibility criteria are as follows : " 3. Appointment to the post of Senior Research Officer shall be made either, _ (a) by promotion of a suitable person from the Commissionerate of Tribal Development, on the basis of Seniority subject to fitness from amongst the persons holding the post of Assistant Project Officer, Research Officer, Administrative Officer and Lecturer, Group-B, having not less than three years regular service in that post, or 6 wp107.10 (b) by nomination from amongst the candidates who,- (i) are not more than 35 years of age: provided that the age limit may be relaxed upto 5 years in case of candidates who are already working in Government service. (ii) possess a Post-Graduate degree in Social Sciences or Anthropology: provided that preference may be given to candidate who possess M.Phil. or Ph.D. in Social Science or Anthropology, and (iii) possess practical experience for a period of not less than three years in any field of tribal, social welfare or tribal research, gained after acquiring the qualifications mentioned in sub-clause (ii). (iv) have adequate knowledge of Marathi : provided further that, the upper age limit and required experience may be relaxed by Government on the recommendation of the Commission in favour of candidates having exceptional qualifications. The qualifications for being appointed as Deputy Director of Tribal Development or Project Officer (Integrated Tribal Development Project) (Grade-I), as defined in the Joint Director of Tribal Development and other Officers, (Class-I), (in the Directorate of Tribal Development) (Recruitment) Rules, 1984 are 7 wp107.10 as follows : (a) by promotion of a suitable person on the basis of selection from amongst the persons holding the post of Assistant Director of Tribal Development or Project Officers (Integrated Tribal Development Project) (Grade-II); or (b) by nomination from amongst the candidates who,_ (i) unless already in the service of Government, are not more than 35 years of age; and (ii) possess a degree at least in second class or a post- graduate degree; and (iii) possess two years' post-graduate diploma of a recognized Institution or degree in Special Work or Social Welfare Administration or Tribal work or Tribal Welfare Administration; and (iv) administrative experience in Tribal Development Department or Tribal Welfare Organisation recognized by Government or Social Welfare Department or Social Welfare Organisation recognized by Government for a period of not less than 3 years : Provided that, the period of experience may be relaxed upto two years if candidates with the prescribed period of experience are not available : 8 wp107.10 Provided further that, the upper age limit may be relaxed by Government on the recommendation of the Commission in favour of candidates possessing exceptional qualifications or experience or both : Provided also that preference may be given to candidates who have made special contribution to Tribal Welfare or Backward Class Welfare. 10. A cursory perusal of the qualifications required for the Deputy Director of Tribal Development, who is the Member Secretary of the Scrutiny Committee, and those required for being appointed as the Senior Research Officer attached to the Committee, are demonstrably different. There is no material on record to hold that D.P. Jagtap, who was the Senior Research Officer, was duly qualified to hold the post of Member Secretary. D.P. Jagtap's qualifications are not described in the affidavit filed by the Committee in reply to the petition. Therefore, in our opinion, his appointment to that post is illegal. 11. Furthermore, the order which has been passed, appointing M.G. Navghare as the Research Officer in absence of the regular Research Officer, who had been directed to act as Senior Member Secretary, has been issued by the Commissioner Tribal Research and Training Institute, Pune. It has not been issued by the 9 wp107.10 Government, which is the Competent Authority. The Chairman of the Committee, who is the Commissioner for Tribal Research and Training Institute, Pune is not empowered to issue any such order appointing a person as Research Officer in place of some other. Apart from this, there is no material on record to indicate that M.G. Navghare was suitably qualified to act as a Research Officer. Assuming M.G. Navghare has worked in the Tribal Development Department since 1984, there is no material on record to indicate when he was appointed an Administrative Officer in the Department. 12. An affidavit has been filed by a person working presently as Research Officer of the Committee, in reply to the Petition. With respect to the constitution of the Committee, he has averred that because the incumbent Research Officer had been superannuated on 31st December, 2008, an alternative arrangement was made and M.G. Navghare was directed to hold the additional charge of Research Officer of the Committee. He has further stated that M.G. Navghare is qualified with a Master's Degree in Political Science and has been working in the Tribal Development since 1984. According to the affiant, M.G. Navghare was aware about the traits and customs of various tribes because he had completed his Bachelor's Degree with Sociology, Political Science and Public 10 wp107.10 Administration. As we have noted above, the qualifications required for the posts of Research Officer by nomination are not a degree in Political Science, but a post graduate degree in Social Sciences or Anthropology. Besides this, a person must have practical experience for a period of not less than three years in any field of tribal and social welfare or tribal research, after obtaining his post graduation. In case a person employed with the Commissionerate of Tribal Development is promoted, on the basis of seniority, to the post of Senior Research Officer, the requirement is that the person ought to be holding the post of Assistant Project Officer, Research Officer, Administrative Officer or Lecturer Group `B' with three years of regular service in that post. M.G. Navghare has not filed any affidavit nor is there material on record to establish that he had worked for three years in the capacity of Administrative Officer. He was not qualified to hold the post of Research Officer, much less the post of the Senior Research Officer. Besides this, his appointment as Research Officer is not made by the Government as required under Section 6(1) of the Act. Even assuming it is a stop gap arrangement, the order has to be issued by the Government and not by Chairman of the Scrutiny Committee. There is, therefore, in our opinion, no doubt that the Scrutiny Committee was not validly constituted. It is well settled that if one member of the Scrutiny Committee is not adequately qualified the 11 wp107.10 decision of the Committee cannot be faulted for that reason alone. In the present case two members of the Committee fell short of the requisite qualifications. 13. Shri Phatke, the learned Advocate appearing for respondent no.2 has submitted before us that merely because the appointment of one of the members of the Scrutiny Committee may be in breach of the provisions of the Act and the Rules, it would not necessarily mean that the decision of the Scrutiny Committee is incorrect. He urged that the petitioner has not challenged the decision of the Scrutiny Committee on the ground that the Committee was not properly constituted, and therefore, this contention raised by the petitioner need not be considered. Shri Phatke has relied on the certain judgements of the Supreme Court as well as this Court, which we will now advert to. 14. In the case of "The State of Haryana V/s The Haryana Co- operative Transport Ltd., and others" reported at "AIR 1997 S.C. 237", the Supreme Court considered the passage from the Cooley's "A Treatise on the Constitutional Limitations" (8th Edn., Vol.2; pages 1355-1358)", which reads as follows : 12 wp107.10 "An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created is entitled of right to have him perform its duties. If he is excluded from it, the exclusion is both a public offence and a private injury. An officer de jure may be excluded from his office by either an officer de facto or an intruder. An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it, or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed, or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on 13 wp107.10 the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or employment, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally." The Court then observed thus : "Broadly, the starting point and the primary basis of these decisions is the passage from Cooley's 14 wp107.10 Constitutional Limitations, which we have extracted above. That passage says and means that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding. This important principle, according to Cooley, finds concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally." The Court also held that in the case before it, the proceedings by way of a Writ Petition were not initiated for collaterally attacking an appointment to a Judicial Office in a proceeding primarily intended for challenging a so-called judicial decision. The proceeding was initiated principally and pre-dominantly for challenging the appointment itself. In these circumstances, the Court held that none of the decisions, cited at the bar nor indeed the passage in Cooley's Treatise was an answer to the prayer that the award be declared to be utra vires on the ground that the officer who gave it was not qualified to hold that post in the exercise of whose functions the award was given. 15. These observations were made, where the challenge to the award passed by the Presiding Officer, Labour Court was on the ground that the Presiding Officer was not qualified for being appointed as the Judge of the Labour Court under Section 7(3)(d) 15 wp107.10 of the Industrial Disputes Act, 1947, and therefore, the Award passed by him was without jurisdiction. In our opinion, the challenge to the constitution of the Scrutiny Committee is a substantive challenge in the present Petition, which has been raised in Ground Nos. I to IV of the Petition. In prayer `B' the petitioner seeks a writ of certiorari to quash the order passed by the Committee. The Supreme Court in the case of State of Haryana(Supra), has held that because of the mere circumstance that a writ of quo-warranto is not sought in the Writ Petition, it can not be urged that the appointment was challenged collaterally in a proceeding to challenge the award. Similarly, in the present case, though such a writ is not sought, the substantive challenge in the Petition is to the constitution of the Committee, and therefore, the Writ Petition is maintainable. 16. Shri Phatke, the learned Advocate for the respondent no.2 has also relied on the judgement of the Division Bench of Nagpur Bench in the case of "Avinash Tulshiram Limje V/s State of Maharashtra" in Writ Petition No 903 of 2007 and other connected matters decided on 23rd April, 2007. The Constitution of the Scrutiny Committee was challenged before the Bench on the ground that it was not in accordance with the Act and the Rules. The Division Bench has held thus : 16 wp107.10 "First, it has to be realized that vacancies are bound to occur in various offices created under Statutes. It does not, however, follow that such an office is really vacant. Person holding a statutory position or a position created under the Rules is a juristic entity and, therefore, ordinarily there is a perpetual succession with somebody else filling in the position and not permitting occurrence of the vacuum. 15. The contention of the learned Advocate for the petitioners that the Director could not have asked Smt. V.P. Naik to hold the post of Member-Secretary, is equally unfounded, since the petitioners have not shown that the Director or controlling officer at the regional headquarter was devoid of any such power to ensure that the charge of the post, which had fallen vacant, should be held by another office. 16. We find from the Act, rules made thereunder and the schedule thereunder that persons occupying different positions in the Committee are appointed, are ex officio. This position will be clear from Section 6 of the Maharashtra Scheduled Caste, 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 and notification dated 4-6-2003 issued by the State Government thereby nominating various officers ex officio. This notification is published on 5-6-2003. None of the positions in the 17 wp107.10 Committee are appointment by name. The appointments are not of the nature of “Persona Designata”. The scheme envisaging entrustment of the task of scrutiny to the Committee by Madhuri Patil's judgment and then by the statute and rules is to entrust the job to a team of personnel having special knowledge, training and expertise. The personnel serving on various technical posts in Social Welfare/Tribal Welfare Department are the persons drawn from discipline of Sociology/Social Work and only such persons are involved in this work. It is not the petitioners' case that persons who were not having expertise were inducted in the Committee. 17. Similar question of constitution of Committee was raised in Writ Petition No.5415 of 2005, where this Court held that so long as the officer concerned was holding the additional charge of the post of Deputy Director under the orders and/or instructions of the superiors, it could not be said that the Committee was not properly constituted. Therefore, the petitioners' attempt to assail the orders passed by the Committee on this vague ground has to be rejected. " 17. It must be borne in mind that the Scrutiny Committee is a creature of the Statute, namely 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 18 wp107.10 Certificate Act, 2000. Therefore, the Committee and its members would not have jurisdiction to decide any case unless they have been appointed in accordance with law. The appointment of Navghare and Jagtap, in our opinion, is not made as envisaged in the aforesaid Act. 18. Reliance is also placed by Shri Phatke on the judgement in the case of "Shradha Chandrashekhar Koli V/s State of Maharashtra and others in Writ Petition No. 9498 of 2009 dated November 13, 2009". In this case, one of the members was not eligible to be appointed as he did not possess intimate knowledge for identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. The Court made a distinction based on the de facto doctrine between a person who is a usurper of an office and the person who was appointed, but his appointment was defective. 19. In the case of "Umesh Bhausaheb Gavali V/s State of Maharashtra and others in Writ Petition No. 9446 of 2009 decided on 14th January, 2010", the decision of the Scrutiny Committee was challenged on the ground that one of the members was not eligible to be appointed. Relying on the judgement in the case of State of Haryana (Supra), the Court has held that merely 19 wp107.10 because the appointment of one of the members was not valid, the order passed by the Scrutiny Committee was not invalid. 20. The facts before us leave no manner of doubt that the appointment of Jagtap and Navghare to the Scrutiny Committee as Member Secretary and Senior Research Officer respectively, is illegal. However that by itself will not render the decision of the Committee bad. Taking a conspectus of the decisions cited before us it is amply clear that the doctrine of a de facto decision will apply in the present case. The decision of the Committee, though improperly constituted, is saved because of this principle. If we were to ignore this doctrine decisions rendered by the Committee would be considered non est, thus leading to chaos. There cannot be any dispute that Jagtap and Navghare were not usurpers of the post. They were issued appointment orders, albeit without authority of law. Thus the decision of the Committee would have to be accepted unless it is found to be flawed on some other grounds. 21. We will now examine the contentions raised on behalf of the petitioner on the merits of the Committee's decision. The first submission of Shri Deshmukh was that the Vigilance Cell has not conducted a proper enquiry. He points out that the research officer was not associated with the Vigilance Cell when the enquiry was 20 wp107.10 conducted which is in breach of Rules 10 and 12. An enquiry conducted only by the Police Officer is not envisaged under the Rules. Therefore, this submission of Shri Deshmukh deserves to be accepted. Besides this the affinity test has not been conducted properly as the responses of the petitioner's parents and the petitioner to