1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No. 190 of 2008. PETITIONER : Mohd. Akram Sk. Imam, aged about 32 years, Occ:Weaver, R/o Satranjipura, Balapur, Tq. Balapur, Distt. Akola. -VERSUS- RESPONDENTS : 1. Caste Scrutiny Committee for Other Backward Classes through its Chairman, Amravati Division, Amravati. 2. State of Maharashtra through Tribal Development Department, Mantralaya, Mumbai-32. 3. Mohd. Jamir Sk. Ibrahim, Aged about 37 years, Occ:Business, R/o Balapur, Tq. Balapur, Distt. Akola. 4. Collector, Akola. 5. Municipal Council, Balapur through its Chief Officer. Shri R. L. Khapre, Advocate for the petitioner. Shri M. B. Nasre, Advocate for the R-1. Shri O. D. Kakde, AGP for R-2 & 4. Shri Z. A. Haw with Mr. S. Z. Quazi Advocate for R-3. Shri Pradeep Marpakwar, Advocate for the respondent-6. CORAM: B. H. Marlapalle And A. H. JOSHI, JJ. DATED: 17th OCTOBER 2008. ORAL JUDGMENT (Per A. H. Joshi, J): 1. Rule. Rule is made returnable forthwith. Respective Advocates waive service. Record and proceedings of the Scrutiny Committee were called and are available for perusal. Petition is heard by consent of the parties for final disposal. 2 2. The petitioner had applied, and was granted caste certificate of caste 'Julaha' OBC appearing at Sr. No.57 in the Government Resolution dated 13-10-1967. The certificate is dated 16-12-1999 and was issued by the SDO Balapur, Dist. Akola. 3. Since the petitioner contested the election to the Municipal Council from the seat reserved for OBC, he was required to submit his caste certificate to the Caste Scrutiny Committee. 4. The Respondent no.3 appeared before the Scrutiny Committee as Objector to contest the validation of petitioner's caste claim. 5. The Committee invalidated the petitioners claim by its decision rendered on 15-2-2007. 6. The petitioner challenged the said decision of the Committee before this Court in Writ Petition No.888/2007, which was allowed, and the case was remanded to the Scrutiny Committee for hearing and disposal according to law. 7. The purpose for which the order of remand was made is apparent from what this Court has observed in para 5 thereof which reads as follows: “5............................................... In our opinion, the learned Advocate for the petitioner is right in submitting that the principles of natural justice required that the Committee should have brought to the notice of the petitioner the adverse material which the committee proposed to use for invalidating the petitioner's caste claim. The committee ought to have given the petitioner an opportunity of responding to the adverse entires on which the committee sought to place reliance.” [Quoted from page 85 of Writ Petition paper book] While remanding, this Court appointed a date 24-4-2006 3 for appearance. 8. It appears that the Committee again asked the Vigilance Cell to enquire into the matter and furnish fresh report. The Vigilance Cell has furnished its report dated 24-7-2007. The report was adverse to the petitioner, and hence, it was served on the petitioner by the Committee with letter/show cause notice dated 28-8-2007. 9. The petitioner has filed reply to show cause notice dated 28-8-2007 raising the objection to the report of the Vigilance Cell as well as disputing the facts found by the Vigilance Cell. 10. The petitioner submitted on the date scheduled for hearing i.e. 1-12-2007 two applications namely (i) Annexure-XXIV for permission to cross examine the Police Inspector attached to Vigilance Cell and (ii) Annexure-XXV praying for issue of summons to Head Master, Municipal School No.6. Originals of these applications are seen on record without any order thereon. Petitioner did not lead any evidence in support of his claim. 11. The Committee decided the caste claim of the petitioner on 11-12-2007, and invalidated the petitioner's claim. 12. Petitioner has challenged said invalidation in this petition. 13. Inter alia, various grounds raised in the petition and sought to be raised amendments by Civil application No.7752 of 2008, are namely : (a) That the caste claim of the petitioner's uncle namely Sag Aquib Abdul Ajij has been validated by the 4 Committee by its Order dated 29-9-2008, and this point be considered in favour of the petitioner. (b) That the opportunity to cross examine the Police Inspector, who has conducted the enquiry as a member of Vigilance Cell, was not granted. (c) The Head Master who had brought record of the School ought to have been called with original record. 14. As regards the validation of caste claim of the petitioner's relative by blood is concerned referred to in point (a) in para 13 above, it is a subsequent event and would not by itself liable to be considered at this stage. However, same would be open to be considered appropriately though not as a sole ground or foundation for validation of petitioner's caste claim. 15. The point (b) referred to in para no.12 about opportunity to cross examination of the Officer of Vigilance Cell who had conducted home and other enquiry is concerned, it does not need consideration since this Court has already concluded in Deorao S/o Ganpatrao Umredkar Vs. State of Maharashtra and others' case, reported in 2008(1) Mh. L. J., 364, that what is rendered by the Vigilance Cell is an opinion. This Court has then noted that if the Committee has chosen to accept it, it may do so, however, when the Committee declines to accept it, it is the candidate who has to prove his claim by independent evidence. 16. Point (c) in para 12 pertains to granting an opportunity of calling the original record. The record shows that in earlier round, the originals were called and Xerox copies have been taken on record from the Head Maaster. However, when the petitioner wanted to inspect the originals, the opportunity to inspect those documents either in the School or before the Committee ought to have been granted. 5 17. As the case was remanded by this Court for giving an opportunity of hearing, and upon perusal of record, the petitioner found that the original should have been brought before the Committee so that he can inspect those and counter the same, it was the duty of the Committee to summon the Head Master. 18. It would have been better rather proper for the Committee to have called the documents and hear the petitioner on perusal of the originals. 19. The fact remains that the petitioner has refrained from leading any evidence. However, more significant and the material aspect apparent from the record is that the petitioner's application for calling the original record is not decided, and just by ignoring this application, the impugned order is passed. On this ground, impugned decision deserves to be set aside and the case needs to be remanded to the Committee. 20. In view that the case is remanded, it would be open to the petitioner to rely on the Validation certificate of his blood relative, and make suitable submissions, in addition to prove his caste claim by legal evidence. 21. At this stage, learned Advocate Mr. Khapre prays for maintenance of status quo as to the process of election. It is seen from the order dated 26-6-2008 passed in this petition that this Court allowed the process of election to go on, and result was not be declared. In view of this, now the clock need not be reversed, and therefore, this Court would not elect to upset the order dated 12-6-2008 passed in this petition. 22. In order to secure the early decision, this Court 6 directs by consent of the parties that they would appear before the Scrutiny Committee on 31-11-2008. It is open to the petitioner to appear in advance and in that eventuality, the Committee would issue notice asking the Head Master concerned to remain present on 31-11-2008 for production and then taking back the original record concerned. If this process is completed by the petitioner punctually, the Committee shall after affording a reasonable opportunity of leading evidence etc., and hearing to the petitioner conclude the same, including its decision on or before 31-1-2009. 23. Rule is made absolute and the decision of the Scrutiny Committee dated 11-12-2007 Annexure-XXVI is set aside and the case is remanded to the Scrutiny Committee for hearing and disposal in accordance with law, as indicated in the foregoing paragraph. 24. In the circumstances, parties are directed to bear own costs. JUDGE JUDGE //MULEY//