DIST. COLLECTOR SATARA & ANR. versus MANGESH NIVRUTTI KASHID

DIST. COLLECTOR SATARA & ANR.

MANGESH NIVRUTTI KASHID

(Civil Appeal No. 2723 of 2015)

OCTOBER 01, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Maharashtra Scheduled Castes, Scheduled Tribes,De-notified Tribes (Vimukta Jatis), Nomadic Tribes, OtherBackward Classes and Special Backward Category (Regulation ofIssuance and Verification of) Caste Certificate Act, 2000:Notification dated 30.7.2011 issued by the Social Justice, SpecialAssistance Department of the State of Maharashtra, in exercise ofpowers under s.6(1) of Act of 2000 – In terms of the Notification,35 district level committees were constituted to verify castecertificates of candidates who wished to contest the elections tolocal authorities – High Court quashed the said Notification withdirection that for both, the matters of constitution of the Committeeand operation of the Vigilance Cell, the directions in KumariMadhuri Patil* case have to be given full effect to – The originalcertificates issued in pursuance of Government Resolution of30.07.2011 were directed to be recovered from the respectivepersons and destroyed forthwith – However, said judgment wasstayed and as result these certificates, issued under the saidcircular, continued to hold the field and the process followed asper the Act of 2000, read with the Rules of 2003 – On 31.8.2012,Maharashtra Scheduled Castes, Scheduled Tribes, De-notifiedTribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classesand Special Backward Category (Regulation of Issuance andVerification of) Caste Certificate Rules, 2012 were notified – Onceagain, the discretion was left to the Scrutiny Committee to solicit areport of vigilance inquiry, not making it mandatory – The issuepertained to the interregnum period between Notification issuedon 30.07.2011 and Rules notified on 31.08.2012 – Challenge wasto the Caste Validity Certificates granted to the candidates on theground that the said certificates were obtained by fraud, with aprayer for direction to the Election Commission to reject the

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Anomination papers of such candidates – Held: Requirement ofverification of certificates by the Vigilance Cell was provided tobe mandatory in terms of judgment in Kumari Madhuri Patil* –However, as implemented for the interregnum period in question,the input from Vigilance Cell was obtained only selectively – Underthe Rules of 2012, the requirement was not made mandatory, butBwhenever the Scrutiny Committee felt it could solicit report ofvigilance inquiry and not in all cases – The exercise of issuanceof certificates cannot be casual one – The Scrutiny Committeeconstituted to issue the validity certificates must thus at the slightestdoubt take the assistance of the Vigilance Cell to ensure that non-Centitled persons do not get benefit at the cost of entitled persons– The certificates in question were alleged to have been obtainedwithout vigilance reports and within very short period of time –The exercise carried out in the interregnum period between30.7.2011 and 31.8.2012 clearly showed that no proper exercisewas carried out or could have been carried out given the timeDframe within which the caste certificates were issued – Thus, theexercise so undertaken cannot be upheld and has to be quashedwith the direction to carry out the said exercise afresh – It will befor the Caste Scrutiny Committee to carry out the aforesaid exercisewhile notifying the parties concerned through appropriate publicEnotices – These directions were to ensure the objectives of the Actof 2000 i.e. issuance of certificates only to entitled persons,through proper exercise, with proper assistance from the VigilanceCell – Constitution of India – Art. 142 – Maharashtra ScheduledCastes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),FNomadic Tribes, Other Backward Classes and Special BackwardCategory (Regulation of Issuance and Verification of) CasteCertificate Rules, 2012.Constitution of India: Arts.141 and 142 – Guidelines/Directions – Filling up the vaccum – In the absence of legislationG– Held: The purpose of any judicial legislation is to fill vacuum– It does not preclude legislators from enacting law – There is amplepower conferred by Art.32, read with Art.142 of the Constitutionto make orders which have the effect of law by virtue of Art.141of the Constitution, by issuing directions to fill the vacuum till suchtime as the legislature steps in to cover the gaps, or the executiveHdischarges its role – Judicial legislation.

DIST. COLLECTOR SATARA & ANR. v.MANGESH NIVRUTTI KASHID

Administrative Law: Subordinate legislation/delegatedlegislation – Notification dated 30.7.2011 issued by the SocialJustice, Special Assistance Department of the State of Maharashtra,in exercise of powers under s.6(1) of Act of 2000 – Challengedon the ground that the Notification was not in conformity withdirections contained in Kumari Madhuri Patil* case – Held: Areading of Notification makes it clear that the Caste ScrutinyCommittees were constituted to facilitate verification of CasteCertificates of the candidates willing to contest for elective postin any local authority – The composition of the Committee wasmade in pursuance of the specific statutory power in terms of s.6(1)of the Act of 2000 – As far as delegated legislation or anotification issued under statutory powers is concerned, thechallenge can be laid only in terms of well settled principles i.e.either the rule or notification is contrary to the provisions of theAct, or contrary to any provision of the Constitution, or bringsabout conflict which is required to be resolved by the Court –The challenge in this case is not based on any of these parameters,but is simply on the ground that the notification is not in exactconformity with the directions issued by this Court in KumariMadhuri Patil case – Such challenge would not be sustainablein view of the settled principles of examining such subordinatelegislation/statutory notifications – Thus, once the legislature laysdown legislative policy, and confers discretion upon theadministrative agency for the execution of such policy, it is up tothe agency to work out the details within the framework of thepolicy – Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other BackwardClasses and Special Backward Category (Regulation of Issuanceand Verification of) Caste Certificate Act, 2000.

Allowing the appeals, the Court

HELD: 1. Composition of Scrutiny Committee

1.1 The impugned order is predicated on reasoning, asif the judgment in the Kumari Madhuri Patil case, as modifiedby the Kumari Madhuri Patil-II case, was engraved in stone, andit was not open for the legislature to have enacted law at variancewith, or in derogation of the same. The purpose of any judiciallegislation is to fill vacuum. It does not preclude legislators

Afrom enacting law. Judicial activism or judicial legislationemerged on account of an existence of vacuum. It was opinedthat the Supreme Court would not be constrained to fold itshands in despair and plead its inability to help the citizen whohas come before it for judicial redressal in such situation. Ithas been found by this Court that there is ample power conferredBby Article 32, read with Article 142 of the Constitution to makeorders which have the effect of law by virtue of Article 141 ofthe Constitution, by issuing directions to fill the vacuum till suchtime as the legislature steps in to cover the gaps, or theexecutive discharges its role. [Paras 24, 25] [706-B-E]CKumari Madhuri Patil & Anr. v. AdditionalCommissioner, Tribal Development & Ors. (1994) 6SCC 241 : [1994] 3 Suppl. SCR 50 ; Kumari MadhuriPatil & Anr. v. Addl. Commr., Tribal Development,Thane & Ors. (1997) 5 SCC 437 : [1997] 3 SCRD1056 ; (Kumari Madhuri Patil-II) – relied on.1.2 Insofar as the composition of the Scrutiny Committeeis concerned, no doubt the composition of the said Committeewas directed specifically in the Kumari Madhuri Patil case, andmodified by the Kumari Madhuri Patil-II case. The occasion formodification also arose on account of large number of cases toEbe dealt with. So long as the procedure made under thenotification or legislation meets the requirement of law, it cannotbe said that the Committee has to be only as per the directionsof this Court. Post the Rules of 2012 being notified, there isreally no problem. It is not in doubt that the power to issue theFNotification dated 30.7.2011 did exist, in terms of Section 6(1)of the Act of 2000. As far as delegated legislation or anotification issued under statutory powers is concerned, thechallenge can be laid only in terms of well settled principles.Either the rule or notification is contrary to the provisions ofthe Act, or contrary to any provision of the Constitution, or bringsGabout conflict which is required to be resolved by the Court.The challenge in this case is not based on any of theseparameters, but is simply on the ground that the notification isnot in exact conformity with the directions issued by this Courtin the Kumari Madhuri Patil case. Such challenge would notHbe sustainable in view of the settled principles of examining such

subordinate legislation/statutory notifications. [Para 26] [707-F-G; 708-A-D]

2.1 The second part of the challenge relates to therequirement of verification of the certificates by the VigilanceCell. This was provided to be mandatory, in terms of thejudgment in the Kumari Madhuri Patil case. The enormity of theproblems faced by the High Court, through multifarious petitionsarising qua the unverified issuance of such certificates, possiblypersuaded the High Court to lay down stricter norms in thisbehalf. However, as implemented for the interregnum period inquestion, the input from the Vigilance Cell was obtained onlyselectively. Under the Rules of 2012 also, the requirement isnot mandatory, but wherever the Scrutiny Committee feels it“may” solicit report of vigilance inquiry. The exercise ofissuance of the certificates cannot be casual one. The ScrutinyCommittee constituted to issue the validity certificates must,thus, at the slightest doubt take the assistance of the VigilanceCell to ensure that non-entitled persons do not get benefittedat the cost of entitled persons. This is process which will beso followed under the Rules of 2012. [Para 27] [708-E-G; 709-A-B]2.2 The matter, however, cannot rest at this because theexistence of power and its exercise are two different aspects.The view adopted by the High Court, appears to have been inthe context of the manner of exercise carried out by the ScrutinyCommittee in the given situation, and the casual manner in whichthe assistance of Vigilance Cell was sought (or rather notsought). On those aspects, the view of the High Court is correct.During the interregnum period, between 30.7.2011 (when theNotification was issued) and 31.8.2012 (when the Rules of 2012were notified) no proper exercise could have been carried out,or was carried out given the time frame within which the castecertificates were issued. The objective was clear, i.e., tosomehow facilitate as many people as possible, as soon aspossible, to contest the elections. The troublesome aspect isthat the validity certificates are not only valid for that election,but also for subsequent elections. They are not only valid foreducational purposes (except for some cases so restricted), butalso for all other purposes. These validity certificates can

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Apossibly become the basis for issuance of further certificates tothe legal heirs. Thus, the exercise so undertaken cannot beupheld and has to be quashed with the direction to carry out theaforesaid exercise afresh. [Paras 28, 29] [709-C-F]

3. The fresh exercise has to be undertaken within periodBof six months i.e., on or before 31.3.2020. Till this exercise iscompleted, the existing certificates issued for the interregnumperiod would hold good. The exercise would have to beundertaken in respect of all the certificates, except those caseswhere the validity certificate was issued after verification by theVigilance Cell. In view of the case where the Vigilance CellCopined otherwise and yet caste validity certificate has beenissued, the exercise may be carried out afresh. Thus, whereverthere is an adverse report of the Vigilance Cell and yet castevalidity certificate has been issued the exercise has to be carriedout afresh. Those, whose caste certificates were rejected by theDCaste Scrutiny Committee, without any Vigilance Inquiry, maybe given the right to appeal against such rejection, as per Rule7 of the 2012 Rules. [Para 31] [710-A-C]

Dayaram v. Sudhir Batham & Ors. (2012) 1 SCC333 : [2011] 15 SCR 1092 ; Bandhua Mukti Morchav. Union of India & Ors. (1984) 3 SCC 161 : [1984]E2 SCR 67 ; Vineet Narain & Ors. v. Union of India &Ors. (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 ;Vishaka v State of Rajasthan (1997) 6 SCC 241 :[1997] 3 Suppl. SCR 404 ; The Director of TribalWelfare, Andhra Pradesh v. Laveti Giri & Anr. (1995)F4 SCC 32 : [1995] 3 SCR 430 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2723of 2015.

From the Judgment and Order dated 04.05.2012 of the HighCourt of Judicature at Bombay in Writ Petition No. 853 of 2012.

With

Civil Appeal Nos. 2727, 2728, 2729, 2730-2731, 2732, 2734 of

Vinay Navare, B. H. Marlapalle, Atul Yeshwant Chitale, JitendraMohan Sharma, Sr. Advs., Ms. Abha R. Sharma, Nishant R.Katneshwarkar, Anoop Kandari, Pravin Satale, Rajiv Shankar Dvivedi,Aaditya A. Pande, K. N. Rai, Lakshmi Raman Singh, RavindraKeshavrao Adsure, Shivaji M. Jadhav, Ms. Asha Gopalan Nair,Ankolekar Gurudatta, Amol Nirmalkumar Suryawanshi, Sudhanshu S.Choudhari, Sanjay Kumar Tyagi, Zaid Ali Subzposh, Tamim Qadri,Saeed Qadri, Ms. Udita Singh, Shirish K. Deshpande, Rucha PravinMandlik, Mohit Gautam, Mrs. Suchitra Atul Chitale, Ms. Tanvi Kakar,Ansh Pandey, Jhavhar Singh, Sandeep Singh, Ajit Sharma, PranshuKaushal, Anil Kumar, Kunal Cheema, Amit Sharma, Dipesh Sinha,Ms. Aditi Parkhi, Rahul Chitnis, Chander Shekhar Ashri, Satyajit A.Desai, Ms. Anagha S. Desai, Shobit Dwivedi, G. S. Gerwal, HiteshKumar Sharma, Ms. Meenakshi Talwar, Naresh Kumar, C. S. N.Mohan Rao, R. V. Kameshwaran, Gagan Gupta, Uday B. Dube,Bhargava V. Desai, Vishwajit Singh, Advs. for the appearing parties.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

1. The freedom at midnight was followed by the framing of theIndian Constitution. The Constitution of India (for short ‘theConstitution’) took special care, given the social and economic scenarioof our country, to provide for certain special benefits and privileges forpersons from the under-privileged communities, i.e., the ScheduledCastes (for short ‘SCs’) and the Scheduled Tribes (for short ‘STs’).Thus, while prohibiting discrimination on grounds inter alia of race andcaste, under Article 15 of the Constitution, while providing for equalityof opportunity in matters of public employment under Article 16 of theConstitution, an enabling provision was made for providing reservationto people of these categories. In fact, Article 17, abolishinguntouchability, was one more provision in this direction.

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A2. In the implementation of the aforesaid objectives, it becamenecessary to issue caste certificates for obtaining employment andadmission to educational institutions. Unfortunately, this gave rise to vastarea of malpractice as non-entitled persons managed to obtain suchcertificates for availing the benefits. This endemic problem forms thebasis for the jurisprudential discussion in Kumari Madhuri Patil & Anr.Bv. Additional Commissioner, Tribal Development & Ors[1](KumariMadhuri Patil).

3. The facts in Kumari Madhuri Patil[2] case itself are anillustration of this problem. The appellant before the Court was seekinga Caste Certificate on the basis of Caste Certificate obtained by herCsister, who was claiming on the basis of their father having obtainedcaste certificate, certifying him to be of ‘Hindu Koli’ caste. Oninvestigation, the caste claims were found to be wrong and thecertificates issued to the appellant therein and her sister were cancelled.This Court in the Kumari Madhuri Patil[3] case, while discussing theDvarious provisions of the Constitution, emphasised that the State wasenjoined under our constitutional scheme to provide facilities andopportunities to the SCs and STs for education and employment, so asto result in economic improvement, resulting in excellence, equality ofstatus and the right to live in dignity. Thus, any admission wrongly gained,or employment wrongly obtained, on the basis of false social statusEcertificate automatically has the effect of depriving genuine personfor whose benefit the rights have been conferred under the Constitution.Simultaneously, in view of the reservation, General Category candidateloses the seat to an ineligible candidate, who really does not belong tothe SC/ST community. No proper procedure or legislation provided forthe checks and balances in issuance of these caste certificates and,Fthus, in the Kumari Madhuri Patil[4] case, it was deemed necessaryto issue directions to streamline the procedure for issuance of the socialstatus certificates. There were fifteen (15) directions issued, but thetwo directions, which are relevant for the controversy raised in thepresent appeals, are as under:G“4. All the State Governments shall constitute Committee ofthree officers, namely, (I) an Additional or Joint Secretary or any

1 (1994) 6 SCC 241

2 (supra)

3 (supra)

H4 (supra)

officer higher in rank of the Director of the departmentconcerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in thecase of Scheduled Castes another officer who has intimateknowledge in the verification and issuance of the social statuscertificates. In the case of the Scheduled Tribes, the ResearchOfficer who has intimate knowledge in identifying the tribes, tribalcommunities, parts of or groups of tribes or tribal communities.

5. Each Directorate should constitute vigilance cell consistingof Senior Deputy Superintendent of Police in over-all charge andsuch number of Police Inspectors to investigate into the socialstatus claims. The Inspector would go to the local place ofresidence and original place from which the candidate hails andusually resides or in case of migration to the town or city, theplace from which he originally hailed from. The vigilance officershould personally verify and collect all the facts of the socialstatus claimed by the candidate or the parent or guardian, as thecase may be. He should also examine the school records, birthregistration, if any. He should also examine the parent, guardianor the candidate in relation to their caste etc. or such otherpersons who have knowledge of the social status of the candidateand then submit report to the Directorate together with allparticulars as envisaged in the pro forma, in particular, of theScheduled Tribes relating to their peculiar anthropological andethnological traits, deity, rituals, customs, mode of marriage, deathceremonies, method of burial of dead bodies etc. by the castesor tribes or tribal communities concerned etc.”

4. The objective of issuing all these directions is enunciated inpara 14 of this judgment, which reads as under:

“14. Since this procedure could be fair and just and shorten theundue delay and also prevent avoidable expenditure for the Stateon the education of the candidate admitted/appointed on falsesocial status or further continuance therein, every Stateconcerned should endeavour to give effect to it and see that theconstitutional objectives intended for the benefit and advancementof the genuine Scheduled Castes/Scheduled Tribes or backwardclasses, as the case may be are not defeated by unscrupulouspersons.”

AIt appears that these directions from the date of their issuance,on 2.9.1994 apparently seem to have worked well. The State ofMaharashtra sought review of this order, limited to the aspect ofmodification in the composition of the Scrutiny Committee, on accountof certain administrative exigencies. This request was acceded to inKumari Madhuri Patil & Anr. v. Addl. Commr., TribalBDevelopment, Thane & Ors.[5] (Kumari Madhuri Patil-II) in thefollowing terms:

“3. As regards prayer (b) read with direction No. (iv) of theOrder of this Court, we too appreciate the inconvenience causeddue to vast area of the State. Therefore, instead of one committeeCof three officers, there will be three Scheduled Tribe/CasteScrutiny Committees comprising of five members with quorumof three members, as suggested in para 4 of the directions, totake decision. At Pune, Nasik and Nagpur, six Caste ScrutinyCommittees for SCs, Denotified Tribes, Nomadic Tribes, OtherDBackward Classes and the Special Backward Category inexistence at Mumbai, Pune, Nasik, Aurangabad, Amravati andNagpur would continue to scrutinise the certificates issued bythe respective officers and take decision in that behalf. In thisregard, it is also suggested by Shri Dholakia, learned SeniorCounsel for the applicant, that in case any certificate has beenEwrongfully refused by the certificate issuing authority, theaforestated Committees also would go into the question anddecide in that behalf, whether refusal was wrongful and in caseit finds that the refusal was wrongful, they are at liberty to directthe authority to grant the certificate.F4. With regard to prayer (c) also, we feel that the Caste ScrutinyCommittees for Social Welfare, Cultural Affairs and SportsDepartment should comprise of Additional Commissioner(Revenue) — Chairman of the Revenue Division concerned;Divisional Social Welfare Officer-Member; and Research Officeras Welfare Officer-Member-Secretary to function in thatGbehalf.”

5. It appears that with the passage of time, and on examiningthe matter in issue, the State of Maharashtra resolved to place beforethe Assembly, legislative enactment to cover aspects beyond education

and employment, for different categories of SCs, STs and BackwardClasses. The law was so enacted vide The Maharashtra ScheduledCastes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), NomadicTribes, Other Backward Classes and Special Backward Category(Regulation of Issuance and Verification of) Caste Certificate Act, 2000(hereinafter referred to as the ‘Act of 2000’), which was brought intoforce with effect from 18.10.2001. The Preamble of this Act reads asunder:

“An act to provide for the regulation of the issuance andverification of the Caste Certificates to the persons belonging tothe Scheduled Castes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic Tribes, Other Backward classes andSpecial Backward Category and for matters connected therewithor incidental thereto.

WHEREAS it is expedient to provide for the regulation of theissuance and verification of the Caste Certificates to the personsbelonging to the Scheduled Castes, Scheduled Tribes, De-notifiedTribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classesand Special Backward Category and for matters connectedtherewith or incidental thereto;”

6. The Act of 2000 provided for the constitution of ScrutinyCommittee, while first defining Scrutiny Committee under Section 2(k)of the ‘Definitions’ clause and then providing for the constitution of thatCommittee under Section 6 of the Act of 2000. The said Sections readas under:

“2. Definitions.

In this Act, unless the context otherwise requires,-

(k) “Scrutiny Committee” means the Committee or committeesconstituted under sub-section (1) of section 6 for the ScheduledCastes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),Nomadic Tribes, Other Backward Classes or Special BackwardCategory for verification of the Caste Certificate and to performthe function of Scrutiny Committee under this Act;”

“6. Verification of Caste Certificate by Scrutiny Committee.

(1) The Government shall constitute by notification in theOfficial Gazette, one or more Scrutiny Committee(s)for verification of Caste Certificates issued by theCompetent Authorities under sub-section (1) of section4 specifying in the said notification the functions and thearea of jurisdiction of each of such Scrutiny Committeeor Committees.

(2) After obtaining the Caste Certificate from theCompetent Authority, any person desirous of availing ofthe benefits or concessions provided to the ScheduledCastes, Scheduled Tribes, De-notified Tribes (VimuktaJatis), Nomadic Tribes, Other Backward Classes orSpecial Backward Category for the purposes mentionedin section 3 may make an application, well in time, insuch form and in such manner as may be prescribed,to the concerned Scrutiny Committee for the verificationof such Caste Certificate and issue of validitycertificate.(3) The appointing authority of the Central or StateGovernment, local authority, public sector undertakings,educational institutions, Co-operative Societies or anyother Government aided institutions shall, make anapplication in such form and in such manner as may beprescribed by the Scrutiny Committees for theverification of the Caste Certificate and issue of avalidity certificate, in case person selected for anappointment with the Government, local authority, publicsector undertakings, educational institutions, co-operativesocieties or any other Government aided institutions whohas not obtain such certificate.

(4) The Scrutiny Committee shall follow such procedure forverification of the Caste Certificate and adhere to thetime limit for verification and grant of validity certificate,as prescribed.”

7. It may, thus, be noticed that the Act, in the context of thejudgment in the Kumari Madhuri Patil[6] case, neither specified the

6 (supra)

exact composition of the Scrutiny Committee, nor incorporated theaspect of the Vigilance Committee.

8. The Act of 2000 having come into force, the ScrutinyCommittee continued as constituted under the Kumari Madhuri Patil[7]case, and it was assisted by Vigilance Cell, once again, constituted interms of the said judgment.

9. In the year 2003, while exercising powers under Section 18(1)of the Act of 2000, empowering making of Rules, the State Governmentbrought into force, The Maharashtra Scheduled Tribes (Regulation ofIssuance and Verification of) Certificate Rules, 2003 (hereinafterreferred to as the ‘Rules of 2003’), with effect from 4.6.2003. TheseRules, as is apparent from their description, were restrictive inapplication, to the ST community. These Rules further did not lay downany specifications for the constitution of the Scrutiny Committee, otherthan to provide that there would be Chairman, Member Secretaryand any other Member. It is these Rules, legislated as subordinatelegislation, which brought in the Vigilance Cell. The relevant Rules readas under:

“10. Constitution of Vigilance Cell.-

The State Government shall constitute vigilance cell to assisteach Scheduled Tribe Certificate Scrutiny Committee forconducting enquiry which shall consist of,-

(i) Senior Deputy Superintendent of Police;

(ii) Police Inspector (number of Inspectors depending uponthe number of cases);

(iii) Police Constables to assist the Police Inspector;

(iv) Research Officer.

The police personnel shall investigate into the social status claimsby conducting school and home inquiries and other enquiry asper the reference made by the Scrutiny Committee under sub-rule (2) of rule 12.”

“12. Procedure to be followed by Scrutiny Committee.

7 (supra)

(1) On receipt of the application, the Scrutiny Committeeor person authorized by it shall scrutinize theapplication, verify the information and documentsfurnished by the applicant, and shall acknowledge thereceipt of the application. The Member Secretary shallregister the application, received for verification, in theregister prescribed by the Chairman.

(2) If the Scrutiny Committee is not satisfied with thedocumentary evidence produced by the applicant theScrutiny Committee shall forward the applications to theVigilance Cell for conducting the school, home and otherenquiry.

(3) The Vigilance Officer shall go to the local place ofresidence and original place from which the applicanthails and usually resides, or in case of migration, to thetown or city or place from which he originally hailedfrom.

(4) The Vigilance Officer shall personally verify and collectall the facts about the social status claimed by theapplicant or his parents or the guardian, as the case maybe.

(5) The Vigilance Cell shall also examine the parents orguardian or the applicant for the purpose of verificationof their Tribe, of the applicant.

(6) After completion of the enquiry, the Vigilance Cell shallsubmit its report to the Scrutiny Committee who will inturn scrutinize the report submitted by the Vigilance Cell.

(7) In case the report of Vigilance Cell is in favour of theapplicant, and if the Scrutiny Committee is satisfied thatthe claim of the applicant is genuine and true, theScrutiny Committee may issue the validity certificate.The validity certificate shall be issued in Form G.

(8) If the Scrutiny Committee, on the basis of the VigilanceCell report and other documents available, is not satisfiedabout the claim of the applicant, the Committee shallissue show cause notice to the applicant and also

serve copy of the report of the Vigilance Officer byregistered post with acknowledgement due. copy shallalso be sent to the Head of the Department concerned,if necessary. The notice shall indicate that therepresentation or reply, if any, should be made withinfifteen days from the date of receipt of the notice andin any case not more than thirty days from the date ofreceipt of the notice. In case the applicant requests foradjournment or extension of the time-limit, reasonabletime, may be granted.

(9) (a) After personal hearing if the Scrutiny Committeeis satisfied regarding the genuineness of the claim,Validity Certificate shall be issued in Form G.

Cis satisfied regarding the genuineness of the claim,Validity Certificate shall be issued in Form G.(b) After personal hearing, if the Scrutiny Committeeis not satisfied about the genuineness of the claimand correctness of the Scheduled Tribe Certificate,Dit shall pass an order of cancellation and ofconfiscation of the Certificate and communicate thesame to the Competent Authority for takingnecessary entries in the register and for furthernecessary action. The Scheduled Tribe Certificateshall then be stamped as “cancelled andEconfiscated.””

reading of the aforesaid Rules shows that the role of theVigilance Cell was restricted as compared to the role envisaged underthe Kumari Madhuri Patil[8] case, inasmuch as the assistance to beprovided to the Scrutiny Committee was not in every case, but only ifthe Scrutiny Committee was not satisfied with the documentaryevidence produced by the applicant.

10. It appears that though this was restrictive, only to the STs,practically speaking, the Committee as constituted under KumariMadhuri Patil[9] continued and verification by the Vigilance Cell wasdone as per the aforesaid Rules, even though it was so confined to theST category. This practice apparently continued without protest or anyfurther clarification from this Court. On seeking clarification in this

8 (supra)

9 (supra)

Abehalf, we were informed that the Rules of 2003 were so followed onthe principle of application of an ‘analogous’ principle.

11. We may take note of another development, i.e., challengethat was laid to the constitutional validity of the guidelines in KumariMadhuri Patil[10] case, which was referred to the Constitution BenchBand these directions were upheld in Dayaram v. Sudhir Batham &Ors.[11] The Constitution Bench opined that the directions issued wereintrinsic for the actual realization of the fundamental rights of theBackward Classes of citizens. However, what is relevant to note isthat it was specifically opined that these directions would hold field solong as the State Governments did not come up with appropriateClegislations to substitute the norms laid down in the Kumari MadhuriPatil case. It was also opined that enquiry by the Vigilance Cell wasto be considered to be core requirement for ascertainment of theveracity of the caste certificate. After discussing the aspect of judicialactivism and judicial legislation coupled with judicial restraint, it wasDopined as under:

“22. Therefore, we are of the view, that Directions 1 to 15 issuedin exercise of power under Articles 142 and 32 of the Constitution,are valid and laudable, as they were made to fill the vacuum inthe absence of any legislation, to ensure that only genuineEScheduled Caste and Scheduled Tribe candidates secured thebenefits of reservation and the bogus candidates were kept out.By issuing such directions, this Court was not taking over thefunctions of the legislature but merely filling up the vacuum tillthe legislature chose to make an appropriate law.”F12. The Act of 2000, having wider compass qua all thecertificates to be issued, it appears that there was some difficultyenvisaged almost on the anvil of the local Self-Government elections,to be held in the year 2011. The controversy in issue, thus, begins withthe issuance of notification dated 30.7.2011, by the Social Justice,Special Assistance Department of the State of Maharashtra, exercisingGpowers conferred under Section 6(1) of the Act of 2000. The provisionreads as under:

“6. Verification of Caste Certificate by Scrutiny Committee.

10 (supra)H11 (2012) 1 SCC 333

(1) The Government shall constitute by notification in the OfficialGazette, one or more Scrutiny Committee(s) for verification ofCaste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification thefunctions and the area of jurisdiction of each of such ScrutinyCommittee or Committees…”

13. It is the case of the State Government that with thousandsof candidates seeking to contest the elections, an infrastructural boostwas required to meet the deluge of applications for the issuance of castecertificates sought for contesting the elections. In terms of thisNotification, thirty-five district level committees were constituted toverify caste certificates of candidates who wished to contest theelections to local authorities. The Chairman of the Caste ScrutinyCommittee was specified as the District Collector or the AdditionalDistrict Collector (IAS), as against the earlier provision of AdditionalCommissioner (Revenue), under the Kumari Madhuri Patil-II[12] case.The relevant portion of the said Notification is reproduced as under:

“And whereas the Government of Maharashtra has now decidedto constitute District wise Caste Scrutiny Committees to appointDistrict Collector or Additional District Collector (I.A.S.) as theChairperson of the said Scrutiny Committees for the purpose ofverification of Caste Certificate of the candidates who (sic.)[13]willing to contest for elective post in any local authority.

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 6 of the Maharashtra Scheduled Castes,De-Notified Castes (Vimukta Jatis), Nomadic Tribes, OtherBackward Classes and Special Backward Category (Regulationof Issuance and Verification of) Caste Certificate Act 2000 (Mah.XXIII of 2001), the Government of Maharashtra hereby constituteThirty-five District Caste Scrutiny Committees as specified in theSchedule appended hereto, for verification of Caste Certificatesof the candidates who (sic) willing to contest for elective post inany local authority, issued by the Competent Authorities underthe sub-section (1) of Section 4 of the said Act.”

reading of the extract of the aforesaid notification, thus, makesit clear that the objective was to facilitate issuance of caste certificates

12 (supra)

13 To be read as who are willing to contest…

Afor “…verification of Caste Certificate of the candidates who (sic)willing to contest for elective post in any local authority…”

14. The story that unfolded in this exercise is best illustrated bya chart produced in the impugned judgment, which was the result ofcompliance of directions issued in that matter. The chart was madeBdivision-wise, with each district specified. It is not necessary toreproduce the chart in its entirety, but it suffices for our purpose toreproduce headings and the final figures for the whole of Maharashtra:

15. The aforesaid would, thus, illustrate that there were somecertificates stamped only for election purposes, while others were not.The manner of verification of these certificates would be evident fromFthe speed with which they were issued, making it difficult to acceptthat there could have been any proper verification. Columns 8 & 9 itselfshow how the exercise was undertaken. The lesser said the better aboutthis exercise!

16. It is in the context of these facts that the High Court wasgreatly troubled while exercising the writ jurisdiction, where the prayerGmade by the petitioners, inter alia, was qua caste certificates issuedand not issued. By an amendment, writ was specifically sought seekingthe quashing and setting aside of the aforesaid Government Resolutiondated 30.7.2011. In these proceedings, through an elaborate judgmentdated 4.5.2012, this Resolution was quashed, with direction that both,Hthe matters of constitution of the Committee and the operation of the

Vigilance Cell (being mandatory), the directions in Kumari MadhuriPatil[14] case have to be given full effect to. The original certificatesissued in pursuance of the Government Resolution of 30.7.2011 weredirected to be recovered from the respective persons and destroyedforthwith.

17. The aforesaid judgment was assailed in this batch of appealsbefore us, and the operation of the impugned judgment was stayed videorder dated 30.7.2012. The result has been that these certificates, issuedunder the aforesaid circular, have continued to hold the field and theprocess followed has been as per the Act of 2000, read with the Rulesof 2003.

18. The next important development has been the enactment ofthe Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and SpecialBackward Category (Regulation of Issuance and Verification of) CasteCertificate Rules, 2012 (hereinafter referred to as the ‘Rules of 2012’),which were notified on 31.8.2012. These Rules are comprehensive,unlike the Rules of 2003. The constitution of the Scrutiny Committeehas been provided for in Rule 11, while the constitution of the VigilanceCell is provided in Rule 12 of the Rules of 2012, and the same read asunder:

“11. Constitution of Scrutiny Committee. – The ScrutinyCommittee shall consist of the following members, namely:-

A12. Constitution of Vigilance Cell. – (1) There shall be VigilanceCell to assist each Scrutiny Committee in conducting the fieldinquiry under rule 17. The Vigilance Cell shall consist of, -

(a) Deputy Superintendent of Police or equivalent;

(b) Police Inspectors;B

(c) Police Constables to assist the Police Inspectors.

(2) Jurisdiction of the Vigilance Cell shall be subject to territorialjurisdiction of concerned Scrutiny Committee, for all purposes,including domestic inquiry and verification of authenticity ofdocuments:

Provided that, in appropriate case, if Scrutiny Committee feels,it may solicit report of Vigilance Inquiry, from any otherconcerned Scrutiny Committee.

(3) Vigilance Cell shall work under the control and supervisionDof concerned Caste Scrutiny Committee.”

19. It is relevant to note that, once again, the discretion has beenleft to the Scrutiny Committee to solicit report of vigilance inquiry,not making it mandatory. Thus, once these Rules were enacted, theprocess of verification and issuance of caste certificates has proceededEunder these Rules.

20. In the course of hearing these appeals, what undisputedlyemerged was that the window of period with which we are concernedis between the Notification being issued on 30.7.2011 and the Rulesbeing notified on 31.8.2012. The Rules have not been challenged byFany one, and hold the field. Thus, we are not really required to go intowhat had happened before the Notification came in, or after the Rulescame in. We may also note that the challenge before us is in respectof only the certificates issued for the purposes of local self-bodyelections, as nobody from any other category has approached the Court.Thus, as to whether the Rules of 2003, applicable to the ST category,Gshould have been applied to all the categories on an ‘analogous’principle, does not require our adjudication. Neither the certificatesissued post the notification of the Rules of 2012 require our adjudication.It is only the interregnum period that we are concerned with. However,to deal with this interim period, certain broader principles have to beHdiscussed.21. An aspect noticed in the impugned order, in para 22, is theorder of the Division Bench of the Bombay High Court, opining in WritPetition No.2527/2009, vide judgment dated 20.1.2010, that theappointment of the Additional Collector as Chairman of the ScrutinyCommittee is not in accordance with law, and that this matter was thesubject matter of appeal before this Court in Special Leave PetitionNo.6003/2010, which had been admitted on 5.7.2011. In this behalf, wehave been informed that when the appeal was taken up for hearing,the private respondents who had filed the petition withdrew the challengeto the validity of the Caste Scrutiny Committee and wanted to movean application before the High Court for disposal of the writ petitionon merits. Thus, the appeal was disposed of as infructuous. Thepurpose of this is only to note that no opinion has been rendered in thatbehalf.

22. We may also note that there were three kinds of writ petitionsfiled before the High Court. The first set of writ petitioners were thosewho intended to participate in the ensuing elections of local Government,even though they did not, at that stage, have caste validity certificate.The prayer was for relaxation of the condition to produce the castevalidity certificate at the time of scrutiny, which had been mademandatory (though that certificate once issued was to remain valid forall purposes). The second set of writ petitioners were those whose castecertificates were invalidated by the Scrutiny Committees, and theysought to challenge the decision with direction to the Returning Officerto allow them to participate in the ensuing elections. The third set ofpetitioners were those who challenged the Caste Validity Certificatesgranted to the candidates who were party respondents in both petitions,on the ground that the said certificates were obtained by fraud, with aprayer for direction to the Election Commission to reject the nominationpapers of such candidates. The impugned judgment has been renderedin the context of the third set of petitioners. The certificates in questionwere alleged to have been obtained without vigilance reports and withina very short period of time, as would be apparent from the chartaforesaid.

23. The grievance against the impugned order, however, is notonly confined to the third set of petitioners, but also to some of the secondset of petitioners, as in view of the Scrutiny Committees not being

Aconstituted in accordance with the Kumari Madhuri Patil-II[15] case,their contention is that there was no validly constituted ScrutinyCommittee, which could invalidate their caste certificates.

Composition of the Scrutiny Committees

24. The impugned order is predicated on reasoning, as if theBjudgment in the Kumari Madhuri Patil[16] case, as modified by theKumari Madhuri Patil-II[17] case, was engraved in stone, and it wasnot open for the legislature to have enacted law at variance with, or inderogation of the same.

25. On the aforesaid aspect, on hearing learned counsel for theCparties, we are unable to persuade ourselves to agree with the line ofreasoning adopted by the High Court. The purpose of any judiciallegislation is to fill vacuum. It does not preclude legislators fromenacting law. Judicial activism or judicial legislation emerged on accountof an existence of vacuum, and it was opined that the Supreme CourtDwould not be constrained to fold its hands in despair and plead itsinability to help the citizen who has come before it for judicial redressalin such situation (Bandhua Mukti Morcha v. Union of India &Ors.[18]). It has been found by this Court that there is ample powerconferred by Article 32, read with Article 142 of the Constitution tomake orders which have the effect of law by virtue of Article 141 ofEthe Constitution, by issuing directions to fill the vacuum till such timeas the legislature steps in to cover the gaps, or the executive dischargesits role (Vineet Narain & Ors. v. Union of India & Ors.[19]). classicexample of this has been the seminal judgment of Vishaka v State ofRajasthan[20], which formulated effective measures to check the evilFof sexual harassment of working women at the work place. Thereare numerous judicial pronouncements in this behalf, but they need notdetain us further, specifically for the reason that in the very judgmentrelied upon in the impugned order, i.e., the Kumari Madhuri Patil[21]case, the Constitution Bench, while examining the validity of the

G15 (supra)16 (supra)

17 (supra)18 (1984) 3 SCC 161

19 (1998) 1 SCC 226

20 (1997) 6 SCC 241H21 (supra)

directions and upholding the same had clearly observed that “by issuingsuch directions, this Court was not taking over the functions of thelegislature but merely filling up the vacuum till the legislature chose tomake an appropriate law.”[22] Needless to observe that theseobservations, being of the Constitution Bench, would be binding on us,and so would it naturally be on the High Court. We may note that whilenoticing the directions in the Kumari Madhuri Patil[23] case, this Courthad expressed view that it was high time that the Government ofIndia examine the matter in greater detail, and bring about uniformlegislation with necessary guidelines and rules (The Director of TribalWelfare, Andhra Pradesh v. Laveti Giri & Anr. [24]) and observed asunder:

“8. While reiterating the above guidelines to be workableprinciples, it is high time that the Government of India wouldhave the matter examined in greater detail and bring about auniform legislation with necessary guidelines and rules prescribingpenal consequences on persons who flout the Constitution andcomer (sic.) the benefits reserved for the real tribals etc. etc.,so that the menace of fabricating the false records and to gainunconstitutional advantages by plain/spurious persons could beprevented. Lest they would defeat the Constitutional objectiveof rendering socio- economic justice envisaged under Article 46in the Preamble of the Constitution under Articles 14, 15, 16, 38and 39.”

26. If we examine the controversy in the conspectus of theaforesaid legal position, insofar as the composition of the ScrutinyCommittee is concerned, no doubt the composition of the saidCommittee was directed specifically in the Kumari Madhuri Patil[25]case, and modified by the Kumari Madhuri Patil-II[26] case. Theoccasion for modification also arose on account of large number ofcases to be dealt with. So long as the procedure made under thenotification or legislation meets the requirement of law, it cannot be saidthat the Committee has to be only as per the directions of this Court.

22 Dayaram v. Sudhir Batham & Ors. (supra)

23 (supra)

24 (1995) 4 SCC 32

25 (supra)

26 (supra)

AWe have already noticed that post the Rules of 2012 being notified,there is really no problem. It is not in doubt that the power to issue theNotification dated 30.7.2011 did exist, in terms of Section 6(1) of theAct of 2000. Thus, the composition of the Committee was made inpursuance of the specific statutory power. It was also to subserve thelarger issue of setting up different committees by decentralizing theBprocess, to meet the requirement of verification of the certificates. Asfar as delegated legislation or notification issued under statutorypowers is concerned, the challenge can be laid only in terms of wellsettled principles. Either the rule or notification is contrary to theprovisions of the Act, or contrary to any provision of the Constitution,Cor brings about conflict which is required to be resolved by theCourt.[27] The challenge before us is not based on any of theseparameters, but is simply on the ground that the notification is not inexact conformity with the directions issued by this Court in the KumariMadhuri Patil[28] case. Such challenge would not be sustainable inview of the settled principles of examining such subordinate legislation/Dstatutory notifications. Thus, once the legislature lays down legislativepolicy, and confers discretion upon the administrative agency for theexecution of such policy, it is up to the agency to work out the detailswithin the framework of the policy.[29]

Requirement of the Vigilance Cell ReportE

27. The second part of the challenge relates to the requirementof verification of the certificates by the Vigilance Cell. This wasprovided to be mandatory, in terms of the judgment in the KumariMadhuri Patil[30] case. The enormity of the problems faced by theHigh Court, through multifarious petitions arising qua the unverifiedFissuance of such certificates, possibly persuaded the High Court to laydown stricter norms in this behalf. However, as implemented for theinterregnum period in question, the input from the Vigilance Cell wasobtained only selectively. Under the Rules of 2012 also, the requirementis not mandatory, but wherever the Scrutiny Committee feels it “may”Gsolicit report of vigilance inquiry. We have, however, no hesitation to

27 Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India(UOI) and Ors., AIR 1986 SC 515.28 (supra)29 Khambhalia Municipality v. State of Gujarat, AIR 1967 SC 1048H30 (supra)

emphasise the importance of proper verification of such certificates tobe issued, and the exercise of issuance of the certificates cannot be acasual one. The Scrutiny Committee constituted to issue the validitycertificates must, thus, at the slightest doubt take the assistance of theVigilance Cell to ensure that non-entitled persons do not get benefittedat the cost of entitled persons. We have no doubt that this is processwhich will be so followed under the Rules of 2012.

28. The matter, however, cannot rest at this because the existenceof power and its exercise are two different aspects. The view adoptedby the High Court, appears to us, to have been in the context of themanner of exercise carried out by the Scrutiny Committee in the givensituation, and the casual manner in which the assistance of VigilanceCell was sought (or rather not sought). On those aspects, we are incomplete agreement with the view of the High Court. The exercisecarried out in the interregnum period, between 30.7.2011 (when theNotification was issued) and 31.8.2012 (when the Rules of 2012 werenotified) leaves us, as the High Court, with grave doubt, and we are ofthe view that no proper exercise could have been carried out, or wascarried out given the time frame within which the caste certificateswere issued. The objective was clear, i.e., to somehow facilitate as manypeople as possible, as soon as possible, to contest the elections.29. The troublesome aspect is that the validity certificates arenot only valid for that election, but also for subsequent elections. Theyare not only valid for educational purposes (except for some cases sorestricted), but also for all other purposes. These validity certificatescan possibly become the basis for issuance of further certificates tothe legal heirs. Thus, we have no doubt that the exercise so undertakencannot be upheld and has to be quashed with the direction to carry outthe aforesaid exercise afresh.

30. The further development, by the enactment of the Rules of2012 is that the said mechanism is now available within the enactedRules, itself. Even the contesting respondents could not seriously disputethat the proper methodology, now, would be for fresh verificationexercise to be carried out under the Rules of 2012. Learned counselfor the State Government could also not seriously dispute this exerciseto be undertaken under the Rules of 2012, but only expressed concernsabout the certificates already having been issued and the complicationwhich would be created by forthwith withdrawal of those certificates.

A31. We do appreciate the problem aforesaid and are, thus, of theview that the fresh exercise has to be undertaken within period ofsix (6) months from today, i.e., on or before 31.3.2020. Till this exerciseis completed, the existing certificates issued for the interregnum periodwould hold good. The exercise would have to be undertaken in respectof all the certificates, except those cases where the validity certificateBwas issued after verification by the Vigilance Cell. We may, however,hasten to add that, in view of the case pointed out to us, where theVigilance Cell opined otherwise and yet caste validity certificate hasbeen issued, the exercise may be carried out afresh. Thus, whereverthere is an adverse report of the Vigilance Cell and yet caste validityCcertificate has been issued the exercise has to be carried out afresh. Itmay be added that those, whose caste certificates were rejected bythe Caste Scrutiny Committee, without any Vigilance Inquiry, may begiven the right to appeal against such rejection, as per Rule 7 of the2012 Rules.D32. We may note that one of the grievances raised by the affectedprivate respondents before us is that though they were impleaded asrespondents, no notice was every issued and their matter was taggedwith the main matter and decided, in their absence. Thus, they had noopportunity to put forth their point of view. In the same line, learnedcounsel for the State of Maharashtra sought to place before us theEproblem where the directions now being issued to be carried out arewith respect to parties who are not before us and may be affected bythis exercise.

33. We are conscious of the aforesaid fact. However, it isimpractical to have all the affected parties before us. Different groupsFin representative capacities are before us. In terms of the impugnedorder, all the original certificates issued by the specially constitutedScrutiny Committees under the Government Resolution dated 30.7.2011were to be recovered from the respective persons and were to bedestroyed forthwith for which three months time was granted. We have,Gin fact while setting aside the impugned order on the question of law,directed only re-verification of the certificates as to whether they arein accordance with law on account of the doubts cast over them, asper what we have set out aforesaid. The stand of the aggrieved partiesby the impugned judgment was, in fact, represented by the appellantbefore us. Moreover, at the time of the fresh exercise of the validityHcertificate being issued, naturally the persons who have been issued

DIST. COLLECTOR SATARA & ANR. v.

MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]

these certificates would be issued notice. In our view that would sufficeAand the aforesaid directions are also necessary to do complete justiceinter se the parties, for which we have the benefit of Article 142 ofthe Constitution. It will be for the Caste Scrutiny Committee to carryout the aforesaid exercise, while notifying the parties concerned, throughappropriate public notices in this behalf. Directions we have now issuedBwould ensure the objectives of the Act of 2000, i.e., issuance ofcertificates only to entitled persons, through proper exercise, withproper assistance from the Vigilance Cell.

34. We end with the hope that the aforesaid exercise would sub-serve the very purpose for bringing the Act of 2000 into force, andconfer benefits only on the entitled persons, while weeding out the non-entitled persons.

35. The appeals are accordingly allowed, leaving the parties tobear their own costs.

Devika Gujral

Appeals allowed.