1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Smt. Harshpal Kaur Vs. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No.1626/2010) S.B. Civil Writ Petition underArticles 227 & 226 of the Constitution of India Date of Order :- 04th March, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Parag Rastogi, for the petitioner. Mr.R.P. Singh, AAG for the State. The petitioner has challenged the notice dated 25.01.2010 issued by the Tehsildar, Tehsil & District Alwar and the Inquiry Report-cum-order dated 29.01.2010 whereby the Tehsildar has cancelled the caste certificate issued to the petitioner. Briefly the facts of the case are that vide notification dated 24.10.2009, the Election Commissioner declared the elections for the Chairman and Ward Members for Municipality, Alwar. The post of Chairperson for Municipality, Alwar was reserved for the OBC category. Since the petitioner claimed to be a member of OBC community, she filed her nomination paper along with the caste certificate which showed her as a member of the said community. Subsequently, on 26.11.2009 she was elected as a Chairperson of Alwar 2 Municipality. However, thereafter a complaint was made with regard to the veracity of her caste certificate. The petitioner claims that she came to know that a notice has been pasted at the office of Municipality, Alwar on 25.01.2010 whereby the Tehsildar had informed her that he had received certain complaint with regard to the genuineness of her caste certificate. He had directed the petitioner to appear before him on 29.01.2010 at 11:00 am. Immediately, the petitioner requested the Tehsildar to give her a copy of the complaint and the related documents attached therewith. Since the said copies were not given, immediately on 29.01.2010, the petitioner did file an interim reply to the notice. However, according to the petitioner without giving any proper opportunities of hearing, vide Inquiry Report-cum-order dated 29.01.2010, the Tehsildar has cancelled her caste certificate. Hence, this petition before this Court. Mr. Parag Rastogi, the learned counsel for the petitioner, has contended that in the case of Kumari Madhuri Patil & Anr. Vs. Addl. Commissioner, Tribal Development & Ors. [AIR 1995 SC 94], the Hon'ble Supreme Court had clearly prescribed the procedure to be followed when a caste certificate is under challenge. According to the procedure prescribed, the State Governments were required to constitute a Committee of three Officers to adjudge the veracity of the caste certificate. However, in the present case, the State has 3 neither constituted the said Committee, nor subjected the petitioner's case to a scrutiny by the said Committee. In fact, the entire exercise has been carried out by the Tehsildar, who is not authorised to scrutinise and adjudge the veracity of the caste certificate. Therefore, both the notice dated 25.01.2010 and the Inquiry Report-cum-order dated 29.01.2010 have been issued by a person who is not authorised to do so. On the other hand, Mr. R.P. Singh, the learned AAG for the State, has pleaded that since the powers to issue a caste certificate lies with the Tehsildar, under the provisions of General Clauses Act the same authority would have the power to cancel the caste certificate. Therefore, the Tehsildar was justified in not only issuing the notice dated 25.01.2010, but was also justified in cancelling the caste certificate vide Inquiry Report-cum-order dated 29.01.2010. Moreover, according to him, ample opportunities of hearing were given to the petitioner by the Tehsildar. Heard the learned counsel for the parties and perused the impugned order as well as the case law cited at the bar. In the case of Kumari Madhuri Patil (Supra), the Hon'ble Supreme Court has laid down the procedure for scrutinizing of a caste certificate as under : 4 1. The application for grant of social status certificate shall be made to the Revenue Sub- Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent Gazetted Officer or non-Gazetted Officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department , (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall 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 5 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 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 concerned castes or tribes or tribal communities 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 concerned educational institution 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 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 6 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. 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 the 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. 9. The inquiry should be completed as expeditiously as possible preferably by day-to- day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an office or post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the 7 proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. In the case of GM, Indian Bank Vs. R. Rani & Anr. [(2007) 12 SCC 796], the Hon'ble Supreme Court has clearly observed that the directions given in the case of 8 Kumari Madhuri Patil (Supra) are not merely guidelines, but have binding force of law. Once a procedure has been established by the Hon'ble Supreme Court, in absence of any rules or regulations, the procedure established by the Apex Court would carry the force of law. Therefore, the State is under a legal obligation to constitute the Committee as enumerated by the Apex Court. In the present case, admittedly the caste certificate has not been scrutinized by any Committee, as no Committee exists in the State Government of Rajasthan. Therefore, the Tehsildar was neither justified in issuing the notice dated 25.01.2010, nor justified in passing the impugned order dated 29.01.2010. In this view of the matter, this Court set asides the notice dated 25.01.2010 and the impugned order dated 29.01.2010. This Court directs the State to constitute a Committee as laid down by the Apex Court in the case of Kumari Madhuri Patil (Supra) and to refer the petitioner's case to the said Committee within a period of two weeks from the date of receipt of certified copy of this order. The Committee is expected to decide the petitioner's case within a period of further two weeks. With these observations, the writ petition is, hereby, allowed. (R.S.CHAUHAN)J. Manoj Solanki-