1 wp516.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.516 OF 2006 Satish s/o Limbaraj Adatrao, Age: 28 years, Occ: Student, R/o. Civil Hospital Quarters, Osmanabad Dist.Osmanabad. ...PETITIONER VERSUS 1. The State of Maharashtra, through the Secretary, Tribal Development Department, Mantralaya, Mumbai-32. 2. The Scheduled Tribe Caste Verification Committee, MS, Aurangabad Division, Aurangabad. Through its Director/Chairman. 3. The Taluka Executive Magistrate, Ausa, Dist. Osmanabad. 4. The Collector, Collectorate Osmanabad. 5. The Under Secretary, Public Health Department, Maharashtra State, Mantralaya, Mumbai-32. 6. The Director of Health Services, Public Health Department, Maharashtra State, Mumbai. ....RESPONDENTS WITH 2 wp516.06 CIVIL APPLICATION NO.2922 OF 2009 ... Mr. Anil S. Golegaonkar, Advocate for petitioner. Mr. K.B. Choudhary, A.G.P. for State respondents. Mr. R.P. Phatake, Advocate for respondent No.2. ... CORAM: SMT. NISHITA MHATRE & S.S. SHINDE, JJ. DATE : 17TH MARCH, 2011 ORAL JUDGMENT : (PER S.S. SHINDE, J.) This petition takes exception to the decision dated 19-08-2005 passed by the Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Aurangabad, (For short, "said Committee") invalidating the tribe claim of the petitioner herein. 2. It is the case of the petitioner that he belongs to 'Mahadeo Koli', scheduled tribe. His tribe claim was referred to the said Committee. On 15-02-1996 the said Committee rejected his 3 wp516.06 claim. The petitioner challenged the said decision of the Committee dated 15-02-1996 before this Court by filing Writ Petition No.4800 of 1996. This Court was pleased to remand the matter back to the said Committee for decision afresh. By impugned decision dated 19-08-2005, the said Committee again invalidated tribe claim of the petitioner. Hence, this writ petition. 3. Learned Counsel appearing for the petitioner invited our attention to the pleadings and grounds taken in the petition and submitted that the decision of the said Committee is perverse and it shows non application of judicious mind. He further submits that the tribe claim of the petitioner is rejected on the ground that the petitioner failed to prove affinity and ethnic linkage, whereas, there is absolutely no whisper and discussion in order, supporting the reasons as to how and why the said finding is recorded. It is further submitted that mandatory inquiry through Research Officer has not been conducted and 4 wp516.06 therefore, inquiry stands vitiated. Inquiry through Vigilance Cell was conducted, however, the Vigilance Cell was not headed by the Officer of rank of Superintendent of Police or Senior Dy. Superintendent of Police, as mandated by Maharashtra Act No. XXIII of 2001 and therefore, entire inquiry stands vitiated. In case of other claimants, inquiry is conducted through Research Officer of Vigilance Cell, but in the present case of the petitioner, Police Inspector has conducted inquiry in the matter of affinity and ethnic linkage. Report of Vigilance Officer shows that Research Officer/Senior Research Officer has neither assessed nor considered nor appreciated the information so called by Vigilance Officer. Thus,there is deviation from procedure. It is further submitted by the Counsel for the petitioner that the evidence in the shape of school record of Madhukar s/o Ramchandra Adatrao and Dattu s/o Laxman Adatrao who are cousins of his grandfather Limbaji, showing that 5 wp516.06 there is entry of tribe as 'Mahadeo Koli' since the year 1947 and 1951 respectively, has not been considered properly by the said Committee. Learned Counsel further invited our attention to the grounds taken in the petition and submitted that the petition deserves to be allowed. 4. On the other hand, learned Counsel appearing for the respondent - Committee submitted that the said Committee has considered the documents placed on record and after appreciation of the evidence produced on record, has passed the order. However, learned Counsel for the respondent - Committee fairly conceded that the vigilance inquiry is not conducted properly. Learned Counsel appearing for the respondent - Committee fairly stated that he has no objection, if the matter is remanded back to the said Committee. 5. We have given due consideration to the submissions of the learned Counsel appearing for respective parties. We have also perused the 6 wp516.06 contents and grounds taken in the petition and also annexures thereto. Upon perusal of Exhibit-L i.e., pages 51 and 52 of the petition, it appears that the vigilance inquiry has been conducted by the Vigilance Cell headed by the Police Inspector. The Hon'ble Supreme Court in the case of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development and others, reported in (1994) 6 Supreme Court Cases 241, in Para-13, has streamlined the procedure for the issuance of social status certificate, their scrutiny and their approval. The constitution of vigilance cell, manner of conducting inquiry by the said cell and the procedure to be followed are described in Para-13(5)(6) of the said Judgment. Para-13 (5) (6) reads thus : "5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such 7 wp516.06 number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars 8 wp516.06 as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. 6. 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 acknowledgment due or through the head of the educational institution concerned in which 9 wp516.06 the candidate is studying or employed. The notice should 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 publishedin the village or locality and if any person or association opposes such a claim, an opportunity to adduce 10 wp516.06 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." 6. Therefore, a careful perusal of Para-13(5) and (6) as reproduced hereinabove, would clearly indicate that the Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors as are required to investigate into the social status claim. After proper inquiry, vigilance cell is supposed to submit report to the Director concerned. If the Director concerned, on receipt of the report from the vigilance officer finds the claim for social status to be "not genuine" or 11 wp516.06 '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 acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, should be made within two weeks from the date of the receipt of the notice and on request, in no case should it be more than 30 days from the date of the receipt of the notice. If the candidate seeks for an opportunity of hearing, same also is required to be given to the candidate. Therefore, conducting a vigilance inquiry is not an empty formality. The vigilance cell is required to be constituted in accordance with procedure streamlined in Para-13 of the Hon'ble Supreme Court judgment in the case of Madhuri Patil, (supra). 12 wp516.06 The State Government has enacted 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 (For short, Act of 2000"). In Section-6 of the Act of 2000, procedure is laid down for verification of Caste Certificate by Scrutiny Committee. Rule 10 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003 (For short, "Rules of 2003) provides for constitution of vigilance cell. Rule 10 of the Rules of 2003 reads thus : 10. Constitution of Vigilance Cell.- The State Government shall constitute a vigilance cell to assist each Scheduled Tribe Certificate Scrutiny Committee for conducting enquiry which shall consist of,- 13 wp516.06 (i) A Senior Deputy Superintendent of Police; (ii) Police Inspector (number of Inspectors depending upon the number of cases); (iii) Police Constables to assist the Police Inspector. (iv) Research Officer. The police personnel shall investigate into the social status claims by conducting school and home inquiries ands other enquiry as per the reference made by the Scrutiny Committee under sub-rule (2) of rule 12. 7. Therefore, from perusal of Exhibit-L which is a part of compilation of this petition, it clearly appears that the vigilance cell was not constituted in accordance with the decision in the case of Madhuri Patil, (supra) or Rule 10 of 14 wp516.06 the Rules of 2003. Therefore, in our opinion, in the case of the petitioner, the Vigilance Cell is not constituted in accordance with the decision in the case of Madhuri Patil, (supra) and Rule 10 of the Rules of 2003 and therefore, the decision of the said Committee based upon such report stands vitiated. As stated earlier, the vigilance inquiry is not an empty formality. The vigilance cell was not constituted in accordance with the procedure streamlined in Para-13 in the case of Madhuri Patil,(supra) and Rule 10 of the Rules of 2003, is not disputed by the Counsel appearing for the respondent- Committee. In that view of the matter, we feel it appropriate to set aside the decision of the said Committee, impugned in this petition. 8. The petition is allowed and disposed of. The decision of the Scrutiny Committee is set aside and the matter is remanded to the Scrutiny 15 wp516.06 Committee to decide it afresh. The petitioner shall remain present before the Scrutiny Committee on 05-04-2011 at 11-00 a.m. The Scrutiny Committee shall decide the matter within six months thereafter. Rule made absolute as indicated above. 9. We make it clear that we have not expressed our opinion on merits of the matter. It is left open to the Scrutiny Committee to consider the documents, evidence brought on record and after following procedure, to pass appropriate decision/order. 10. In the light of disposal of writ petition, nothing survives for consideration in the Civil Application and same also stands disposed of accordingly. [S.S. SHINDE, J.] [SMT. NISHITA MHATRE, J.] sut/Mar11/wp516.06