- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4496 OF 2007 ... Smt.Malan Anantrao Bhintade ...Petitioner v/s. The State of Maharashtra & ors. ...Respondents ... Mr.Y.S.Jahagirdar with Mr.Subhash Jadhav i/b ALMT Legal for the Petitioner. Mr.Khandeparkar i/b Mr.R.G.Ketkar for Respondent No.3. Mr.C.R.Sonawane, AGP for State. ... CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. DATED: 5TH MARCH, 2008 P.C.: 1. By this petition the Petitioner challenges the order passed by the Divisional Caste Scrutiny - 2 - Committee, Pune Division, Pune dated 5-6-2007 holding that the caste certificate issued in favour of the Petitioner that she belongs to ’Kunbi’ (OBC) caste is invalid. 2. The Petitioner had contested the election of Pimpari-Chinchwad Municipal Corporation from the ward reserved for Other Backward Class. She was declared elected from that ward. Her caste certificate was sent to the Scrutiny committee for verification. The Scrutiny Committee made an order dated 3rd May, 2007 holding that the certificate issued in favour of the Petitioner that she belongs to Kunbi caste is invalid. That order was subjected to challenge in Writ Petition No.1587 of 2007. That writ petition was decided by order dated 9th March, 2007. Perusal of that order shows that this court noted in the order that the Scrutiny Committee has called for a report from the Vigilance Cell as required by the directions issued by the Supreme Court in the case of Kumari Madhuri Patil & anr. v/s. Addl.Commissioner, Tribal Development and ors. (1994) 6 SCC 241. The report submitted by the Vigilance Cell indicated that the Petitioner belongs to Kunbi caste. This court noted that in the order dated 3rd March, 2007 that - 3 - the Committee has not considered the report of the Vigilance Cell which was in favour of the Petitioner. The Court, therefore, set aside the order and remanded the matter back to the Committee for fresh hearing. 3. The Scrutiny Committee thereafter made an order dated 2-6-2007 again holding that the claim of the Petitioner that she belongs to Kunbi caste is invalid. Perusal of that order, however, shows that the Committee has not given any reason for the conclusion that the Petitioner does not belong to Kunbi caste. All that is said in the order is that the Committee is not in a position to give reasons in detail for the order. Ultimately, reasons have been given by the Committee for its conclusion that the Petitioner does not belong to Kunbi caste in the order dated 5-8-2007. it is that order along with the order dated 2-6-2007 which are challenged in this petition. 4. The learned Counsel appearing for the Petitioner submits that there are many infirmities in the order passed by the Scrutiny Committee. According to him, one glaring infirmity in the order that the order has - 4 - been made in violation of the directions issued by the Supreme Court in Kumari Madhuri Patil’s case. The learned Counsel submits that the Scrutiny committee had called for a report of the Vigilance Cell. That report was submitted on 5-10-2006. The conclusion reached in that report is that the Petitioner belongs to Kunbi caste. The learned Counsel relying on the judgment of the Supreme Court in the case of Kumari Madhuri Patil submits that after receiving the report of the Vigilance Cell, which was in favour of the Petitioner, two options were available to the Committee either to agree with that report and hold that the Petitioner belongs to Kunbi caste and in case the Committee wanted to disagree with the conclusion reached in the Vigilance Cell, it should have issued a show cause notice to the Petitioner/candidate indicating its reasons for disagreeing with the report of the Vigilance Cell and asking the Petitioner to show cause why the Committee should not disagree with the report of the Vigilance Cell. 5. We have also heard the learned Counsel appearing for the Respondent. It is common ground that the Committee had called for the report from the - 5 - Vigilance Cell. The report of the Vigilance Cell is on record. In that report, the Vigilance Cell has noted that it appears from the documents that the Petitioner belongs to Kunbi caste. The requirement of the Committee calling for the report of the Vigilance Cell is because of the directions issued by the Supreme Court in its judgment in Kumari Madhuri Patil’s case. In our opinion, directions of the Supreme Court contained in paragraph 13(5), 13(6), 13(7) & 13(8) are relevant for the present purpose. They read as under:- 13(5). Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such 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 - 6 - 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 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 caste 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 acknowledgement due or though the head of the - 7 - educational institution concerned in which 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 made 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 - 8 - candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to be parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 6. It is clear from the directions of the Supreme Court quoted above that in each case the committee has to call for a report of the vigilance cell. If the report of the vigilance cell is against the candidate, then the copy of that report is required to be served on the candidate and he is to be given an opportunity to contest the conclusion recorded the - 9 - report. If the report is in favour of the candidate and the Committee agrees with the report, then nothing further is required to be done and the committee has to make an order holding caste certificate to be valid. If the committee for some reasons is of the opinion that the conclusion reached in the report is not correct and proposes to disagree with the conclusion, then as per the directions of the Supreme Court in the Kumari Madhuri Patil’s case, the Committee has to give show cause notice to the candidate along with the report of the vigilance cell indicating in the show cause notice the reasons why the Committee proposed not to agree with the report of the committee, so that the candidate can get an opportunity to show that the report of the vigilance cell is correct and deserves to be accepted. In the present case, admittedly, in the impugned order dated 5-8-2007 the committee has referred to the report of the vigilance cell. It also noted that the vigilance cell has found that the Petitioner belongs to Kunbi caste. The committee has disagreed with that report, but has admittedly not given any show cause notice to the Petitioner before making the order in disagreement with the report nor has the committee given any reason in the order why it is disagreeing - 10 - with the report of the vigilance cell. The order dated 5-8-2007 passed by the Scrutiny Committee, thus, clearly not only violates the principles of natural justice but also violates the directions issued by the Supreme Court in its judgment in the case of Kumari Madhuri Patil (supra). In our opinion, therefore, following order would meet the ends of justice. O R D E R (i) Order dated 2-6-2007 and the order dated 5-6-2007 passed by the Respondent No.2/ Scrutiny Committee are set aside. (ii) The matter is remitted back to the Scrutiny Committee for consideration and decision in accordance with law and the observations made above. (iii) Rule made absolute. No order as to costs. (iv) As the order of the Scrutiny committee holding that the caste certificate issued in favour of the Petitioner that she belongs to Kunbi (OBC) caste is - 11 - invalid is set aside, the Petitioner would continue to hold her elective office, in accordance with the law. (D.K.DESHMUKH, J.) (V.M.KANADE, J.)