affected person. The evidence collected unilaterally by the Vigilance
Cell/Authority/Officer, if used against the claimant, all opportunities
be given to deal with the same. How the unilaterally collected
material be used against the party/claimant, when deciding legal and
Constitutional rights. The principle of natural justice needs to be
followed, in case of no specific rules. The opportunity needs to be
given to the person/claimant to rebut the presumption of decision of
Scrutiny Committee, if any, especially when against the Scrutiny
Committee order, the Writ Petitions are filed, and the Writ Court
under Articles 226 and 227, are required to go into the details of the
disputed question of fact and documents, though writ jurisdiction and
its scope is limited. The decision is required to be considered in Writ
Petition like Appellate Authority. The Writ Court needs to examine the
case on merits also, including the Vigilance Cell report, which just
cannot be overlooked.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 7343 OF 2013
Madhuri Nitin Jadhav,
Vs.
State of Maharashtra, through its
CORAM : ANOOP V. MOHTA AND
A.A. SAYED, JJ.
PRONOUNCED ON : 26 FEBRUARY 2014.
Citation;2015(2)ALLMR200
2 All these Petitions revolve around the issues relating to and
connected to validation of castes certificates belonging to “Thakar”/
“Thakur” or “Ka Thakur”, “Ka Thakar”, “Ma Thakur”, “Ma Thakar”
Schedule Tribe (ST) (for short “the Thakur tribes”) of the State of
Maharashtra. By this common judgment, we are dealing with
basically the issues of “the Constitutional area restriction removal”,
“affinity test”, “relations certificates” and its effect on assessing the
evidence/documents and the merits of the matter while granting
/rejecting/validating the caste certificate.
3 Each case has to be considered on its own merits, as the
relevant oral, as well as, documentary evidence are required to be
dealt with independently, while deciding the case on its merits.
However, the above concepts go to the root of the impugned orders
passed by the Scrutiny Committee under the Maharashtra Scheduled
Castes, Scheduled Tribes, Denotified
Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
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(Regulation of Issuance and Verification of) Caste Certificate Act, 2000
(Maharashtra Act No. XXIII of 2001) (for short, the Act) w.e.f. 18
October 2001 and the Maharashtra Scheduled Tribes (Regulation of
Issuance and Verification of) Certificate Rules, 2003 (for short, “the
Rules”). w.e.f. 4 June 2003.
4 The scope, purpose and scheme of the Act and the Rules
thereunder have been elaborated and discussed in many judgments
including Anand Vs. Committee for Scrutiny and Verification of
Tribe Claims & Ors. 1 and Shilpa Vishnu Thakur Vs. State of
Maharashtra & Ors . 2 There is no dispute that even prior to the
enactment of State Law/Rules, the RespondentState
and its
Authority/officers used to grant/reject/validate the respective caste
certificates principally based upon the Judgments of Supreme Court
(Kumari Madhuri Patil Vs. Additional Commissioner Tribal
Development) 3 and High Courts. Earlier there was no such statutory
provisions, however the caste certificates so issued after validation,
have been recognized and accepted for all the purposes. All the
1 (2012) 1 SCC 113
2 2009(3) Bom. C.R. 497
3 1995 (2) Bom. C.R. (S.C.) 690= (1994) 6 S.C..C. 241
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concerned have been acting upon those caste certificates till this date.
It is only after the Act and the Rules made thereunder, a procedure
and practice notified, which required to be followed by all.
5 It is in the interest of Applicant/candidate/person who
wants to claim the benefits of reservation as declared in The
Constitution of India, including The Constitution (Scheduled Tribes)
Order, 1950, (for short, “first Presidential Order”), the Scheduled
Castes and Scheduled Tribes Lists (Modification) Order, 1956, (for
short, “modified order 1956”). The Scheduled Castes and Scheduled
Tribes Orders (Amendment) Act, 1976 (for short, “the Act of 1976”)
and The Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 2002 dated 8 January 2003. It is also in the interest of other
people at large, as no one who claims such reservation or benefits,
though they are not deserving and/or entitled, granted such
status/benefits.
6 The caste certificate and/or the validation of caste means
and covers all the Constitutional benefits/reservation provided to the
concerned tribe/caste. Such certificates therefore are important not
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only for the Claimant/Applicant, but for the future generation to
come. The decision and/or the order therefore, for and/or against
Claimant/Applicant, passed by the Scrutiny Committee in such
matters, based upon the material available on record, therefore, need
judicious, fair and unbiased and/or unprejudiced approach/inquiry on
the foundation of fair and reasonable opportunity as contemplated
within the ambit of principles of natural justice.
THE CONSTITUTIONAL AREA RESTRICTIONREMOVAL
ORDERS:7
On 6 September 1950, in view of the provisions of Article
342 of the Constitution of India, the first Presidential Order was
promulgated by The President of India notifying the Scheduled Tribes
for the Bombay State, at the relevant time. As per the list, “Thakur”
was listed at Serial No. 21. Therefore, for a whole Bombay State, the
“Thakur” were recognized as Scheduled Tribes (ST). There was no
area restriction imposed by the Parliament in the first Presidential
Order. On 29 October 1956, the area restriction was imposed for the
first time by the Act of Parliament (modified order, 1956) for 25
Tahsils of 5 Districts, for the tribe. However, again on 20 September
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1976, by Act of 1976, the Parliament amended earlier list of
Scheduled Tribes and thereby brought back the position existing prior
to 29 October 1956 and removed the area restriction so far as the
entry of “Thakur” is concerned. The entry is at Serial No. 44. This
means, the Parliament has, with the object to achieve,
removed/reorganized the area restriction for “Thakur” Scheduled
Tribes, for the bifurcated or reconstituted
State of Maharashtra.
8 The Bombay Reorganisation Act, 1960, w.e.f 1 May 1960,
reorganised the State of Gujrat and the State of Maharashtra, thereby
rearranged certain territories of the State of Bombay. A new Bombay
State was formed by the States Reorganisation Act, 1956. This had
affected the Thakur tribe, the other caste/tribe status/benefits. The
first Schedule to the Constitution was also amended for PartA,
PartB
and PartC.
9 The effect of area restriction and/or exclusion and/or
inclusion of Scheduled Tribes/Caste in the respective orders in view of
Articles 341/342 and 366(24) of the Constitution of India has been
considered by the Apex Court in Palghat Jilla Thandan Samudhaya
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Samrakshna Samithi & Anr. Vs. State of Kerala & Anr. 4 , State of
Maharashtra Vs. Milind & Ors. 5 and R. Unnikrishnan & Anr. Vs.
V.K. Mahanudevan & Ors . 6 thereby specifically declared that neither
the State Government nor the Court can inquire into and/or let in
evidence about correctness of any entry of SC/ST in the Constitutional
Orders. It has to be implemented until amended by the Parliament.
Therefore, no one can interfere with the declaration so given and/or
the reservation/benefits so extended within the area and/or outside
the area, but subject to respective boundaries of the States. The effect
is, therefore, once the benefits are declared, it has to be
provided/given to the concerned people of Schedule Tribes/castes/
community provided the caste claims must be a genuine and bonafide.
10 The decision of the Supreme Court in Palghat (Supra) has
been referred and relied in many judgments of this Court while
validating the caste certificate relating to “Thakur” (ST) in question,
based upon the facts and circumstances of each case on merits. The
learned counsel appearing for the parties have cited various
4 (1994) 1 S.C.C. 359
5 2001(1) Mh.L.J. 1
6 2014(1) SCALE 305
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judgments for and/or against the tribe claim. We are not dealing with
those judgments as those are based on the facts of each case. The
issue of Constitutional area restriction removal, is crystallized
specifically in view of a recent judgment of the Supreme Court in R.
Unnikrishnan (Supra), the principles of Palghat (Supra) has been
reiterated and granted the protection to similarly situated
persons/people by observing as under:“
24. This Court reviewed the legal position and declared
that Thandan community having been listed in the
Scheduled Caste order as it then stood, it was not
open to the State Government or even to this Court to
embark upon an enquiry to determine whether a
section of Ezhuva/Thiyya which was called Thandan
in the Malabar area of the State was excluded from
the benefits of the Scheduled Caste order…..Once
Thandans throughout the State are entitled to be
treated as a Scheduled Caste by reason of the
Scheduled Castes Order as it now stands, it is not
open to the State Government to say otherwise, as it
has purported to do in the 1987 order.”
25 ….... “The distinction which the State Government
sought to make between Ezhuva/Thiyyas known as
Thandans like the respondent on one hand and
Thandans who fell in the scheduled caste category, on
the other, thus stood abolished by reason of the above
pronouncement.”......
11 Even in Milind (Supra) the Supreme Court (Constitution
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Bench) has declared and confirmed that the entries in Presidential
orders must be read as it is. The Central Government has also
accepted the position by issuing the Circulars in this regard and lastly
dated 6 November 2013, whereby they have declared the status of
“Thakur” Community in Maharashtra State in following words:“
The area restrictions of “Thakur or Thakar including
Ka Thakur, Ka Thakar, Ma Thakur, Ma thakar”
communities enlisted as Scheduled Tribes in the then State
of Bombay was removed, vide the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976. The
“Thakur, Thakar, Ka thakur, Ka Thakar, Ma Thakur, Ma
Thakar” communities is listed at entry No.44 in list of the
Scheduled Tribes of Maharashtra State.
In terms of the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976, the persons belonging to
“Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma
Thakar” Scheduled Tribe Communities are entitled to avail
the benefits meant for Scheduled Tribes in the Constitution,
throughout the State of Maharashtra.
The Ministry of Tribal Affairs is the nodal Ministry for
notification of a community as Scheduled Tribe under
Article 342 of the Constitution. The responsibility for
issuance and verification of Scheduled Tribes
certificates/social status rests with the concerned State
Government/UT Administration.”
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12 It is clear that the President can specify caste, races or
tribes or part thereof, in relation not only to the entire State, but also
in relation to parts of the State where such specification is necessary,
based upon the material available with them. The education and/or
social backwardness in this regard of the caste/races/tribes may differ
from area to area even within the State, but once the declaration is
made to extend the benefits or declaring a community which falls
within the ambit of Scheduled Tribe and/or Scheduled Castes, unless
excluded and/or included caste/tribe wise and/or areawise,
it binds
everyone concerned. Once such declaration is made, the people of
concerned Scheduled Tribe and/or Caste are entitled for the benefits
so announced (Sudhakar Vs. State of Maharashtra) 7 . Even after
reconstruction of the States/bifurcation, such persons/people of
particular tribe are entitled for the recognition at least in the State
where such caste is recognized as Scheduled Tribe and/or caste by the
Orders. Even the State is not empowered or have any legislative
competence to alter the same and/or deny the benefits. Normally, the
Court cannot include and/or exclude the social status of particular
tribe/caste so also cannot take away benefits once announced.
7 AIR 2004 S.C. 1036
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13 However, this, in no way, be treated as final and binding so
far as the correctness of the caste certificate. The enquiry needs to be
made as to whether the caste certificate has rightly been issued or not.
14 From the above, it is clear that no authority can after 20
September, 1976, inquire and/or ask for an evidence that the
“Thakur” Scheduled Tribe falls within the restricted or outside area in
the State of Maharashtra. There is no reason to insist for the inquiry
and/or information and/or evidence from the Claimant/Applicant to
bring on record the documents and/or material of the particular
area/region within the State.
15 It is also clear that all people of Thakur community/tribes
belong to State of Bombay were part of first Presidential Order since 6
September 1950 upto 28 October 1956. The Bombay State at that
time was inclusive of some part of Gujarat and/or Madhya Pradesh.
From 2 September 1976, till this date, most of the areas are part of
Maharashtra, after the States' reconstitution/bifurcation. The districtregionwise
reservation was made after modified order, 1956.
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Therefore, claimants/persons belong to Thakur/tribes/community
just cannot be denied their status for want of documents only of
restricted districts as per modified order, 1956. The
documents/materials of Bombay State and documents and material of
whole State of Maharashtra after 1977 are also important to claim the
Thakur tribes benefits. It is also relevant to note that the change
and/or recognition from Thakur tribes for the State of Bombay was
restricted for the respective districts after modified order, 1956. The
said restriction was continued about 20 years as recorded above, but
once the Region/district restrictions are removed, the insistence of the
documents only from the restricted area by overlooking first
Presidential Order, just cannot be permitted. By the Act of 1976, the
Thakur tribe, if recognized for whole State of Maharashtra, the
documents from the restricted area/districts cannot be the only source
for deciding the Thakur/scheduled tribes claims/benefits. The
endeavour must be to check and verify the supporting documents of
the Thakur tribes of any part of Maharashtra/Bombay State and as per
the first Presidential Order.
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16 There is no question of further inquiry by any Authority to
challenge and/or test the benefits required to be given to the “Thakur”
ST Community, if they reside and/or hail from any part of the State of
Maharashtra. The status of “Thakur” ST community in whole State of
Maharashtra is equal for all and so also the benefits and reservation.
17 As migrants belong to Scheduled Tribes/resident of the
year 1950 in the area, that excludes and/or constitutes the State of
Maharashtra and would be entitled to benefits of reservation as ST in
the State of Maharashtra. Their legal representation/prayers cannot
be denied the same status and benefits. The status/privilege
conferred by the Constitution first time in the year 1950, not only
because of the birth of father or forefather, but because of socioeconomic
conditions of the tribe/caste.
18 The Act 108 of 1976 has no retrospective effect. The
benefits restricted or expanded also cannot be taken away by
overlooking the documents/evidence of any area of Maharashtra. The
Full Bench Judgment (Shweta Santalal Lal Vs. State of
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Maharashtra)8 was not considered in the recent judgments listed by
the State of Maharashtra.
19 The Judgments cited and referred by the learned senior
counsel appearing for the State of Maharashtra though based on facts,
nowhere taken a contrary view with the position that a tribal
belonging to the “Thakur” ST, irrespective of his residence/place is
entitled to get his claim validated, if he satisfies all other tests.
Therefore, there cannot be any dispute with regard to the proposition
as canvassed by both the parties that every persons/Applicants must
discharge their basic burden to prove the claim. The Scrutiny
Committee/Vigilance Cell/Research Officer required to consider the
case in accordance with law and rules so prescribed. There cannot be
any straight jacket formula which announced and followed by all the
concerned. (Anand) (Supra). In view of this the Scrutiny Committee
bound to make inquiry into the factum including the
Applicants/Claimants' and/or their forefathers' original existence
and/or place of residence, but this also means to take into
consideration unrestricted area/region upto 29 October 1956 and
8 2010(2) Mh.L.J. 904
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after 20 September 1976. The period during which the area
restrictions were declared, may be one of the factor, the Scrutiny
Committee was bound to consider the oral, as well as, the written
evidence/documents to grant and/or reject and/or invalidate the caste
certificate of “Thakur Tribes”. The decision and/or insistence to place
documents, as well as, the evidence only of the restricted area, in our
view, cannot be the reason to overlook all other documents and/or
material pertaining to the whole State of Maharashtra/State of
Bombay, if required.
20 Apart from the broad parameters so announced and
declared and as referred by and in the Judgments, the fact whether
the Claimant/Applicant is tribal or not, the requisite test, considering
the basic factors like Primitive Traits, Distinct Culture, Geographical
Isolation, Distinct dialect, Animism, Clean systems, Shyness of nature,
Backwardness in view of the rites of passage life cycle events, healing
rites, construction rituals and agriculture and hunting rituals, also
required to be considered, but this does not also mean that in cases
where, for various reasons, the Applicants' family or forefathers left
the original areas and shifted to other parts of the State of
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Maharashtra are not entitled for the benefits of Scheduled Tribes.
This, in our view, is impermissible approach as it denies their
Constitutional rights.
21 There cannot be any dispute in view of the Judgments so
referred by the parties with the inquiry that the Applicants are from
Tribal Community and for that they have to prove/establish the
affinity to his original Scheduled Tribe. (Anand)(Supra) (
Dattu
Namdeo Thakur Vs. State of Maharashtra) 9 . This itself means that
no other “Thakur” belonging to the higher Class like, Kshatriya, Bhat,
Bramhabhat, Rajput are entitled to claim these benefits automatically.
But, at the same stroke, the genuine cases of the Applicants/people
from the “Thakur” Scheduled Tribe Community, cannot be deprived of
their rights merely because they failed to produce documents of the
restricted area and/or evidence in support of their case, as done in
most of the cases we have heard finally.
22 The person and their family who have left their original
area long back and living in some other parts of the State of
9 2010(2) Mh.L.J. 494
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Maharashtra and not following the tribe's culture because of
generation gap, they do not loose their rights to claim the tribe
certificates in accordance with law. The person's present residence is
not the sole criteria. The affinity of the candidates/Applicants with a
tribe community is one of the relevant factor, but not only element to
grant and/or validate the caste claim. All these issues are interlinked
and interconnected.
23 The claimants only in case of doubt and/or vagueness are
asked to satisfy the basic elements of traits, characteristics, customs,
rites, for connecting and/or for association of affinity to Thakur
Scheduled Tribe and not otherwise. (Shilpa) (Supra) and
Pandurang Rangnath Chavan Vs. State of Maharashtra & Ors.. 10 )
24 The oral, as well as, the documentary evidence are the
requirement of law. Those evidence cannot be overlooked by the
Scrutiny Committee and/or by the Vigilance Cell and/or their Officers
in view of the clear Constitutional provisions, so referred above.
There is no reason and/or justification and/or any restriction made
10 1998 (2) Mh. L.J. 806
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out and/or pointed out by the RespondentState
of Maharashtra, apart
from the provisions of Act and Rules made thereunder. There are no
restrictions and/or any clauses which prohibit and/or disentitle
the
Claimant and/or Applicant to file the supporting oral, as well as, the
documentary evidence of area other than the restricted one. The
Scrutiny Committee may accept or reject the contents of the
documents and/or supporting evidence, but cannot throw away
merely because document is not from the area and/or restricted area
in question. The “Thakurs” of above restricted area (25 Tahasils and 5
Districts) cannot be treated differently than the Thakur Scheduled
Tribes of other parts of State of Maharashtra, for any other purposes.
All are equals, once the restrictions are removed. The Committee
insists that the Petitioner should prove that his/her forefathers
belonged to the 5 Districts mentioned in Presidential Order of 1956,
which approach is erroneous after the 1976 enactment removing the 5
Districts etc. i.e. area restriction or area affinity is removed.
25 No one can, including the Court and/or Authorities under
the Act, take away the benefits by invalidating the cases, merely for
want of documents from the erstwhile restricted area. (Dinesh
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Ramesh Thakur Vs. State of Maharashtra and Ors.) 11
26 The aspect of area restrictions and/or removal of
restriction and the effect of Constitutional orders in and/or out
particular caste/Tribe and its binding effects reported in (Action
Committee On Issue of Caste certificate To Scheduled Castes and
Scheduled Tribes in the State of Maharashtra & Anr. Vs. Union of
India and Anr) 12 . (Constitution Bench). Further discussed and
considered in Palghat (Supra) and in Milind (Supra)(Constitution
Bench) and now, in Unnikrishnan (Supra). Therefore a
person/Community/claimant from “Thakur” Scheduled Tribe having
resident/origin in State of Bombay, if migrated and shifted in any part
of Maharashtra is entitled to carry with him/her the Constitutional
benefit privileges. Therefore, the caste certificate and its verification
are important, so also the inquiry and the decision at both stages as
the Applicant/Claimant is also entitled to bring oral, as well as, the
documentary material from his original traits and Tribe irrespective of
region/restriction in support of his claim. He may not get the same
caste benefits because of missing entry of particular Tribe and caste in
11 2012 (2) Mh.L.J. 396
12 (1994) 5 SCC 244
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other State, still his caste/Tribe remains the same, as its original. The
person, therefore, if able to produce certificate and/or material to
establish that his/her father or grandfather
though now residing
another part of State of Maharashtra and/or earlier residing and/or
origins of State of Maharashtra, even prior to 10 August 1950 upto
modified order, 1956, the Scrutiny Committee has to consider the
same before rejecting and/or granting the Caste/Tribe claims. Such
person cannot cease to be a SC and/or ST and/or become a member
of forward Caste automatically. Such Applicant/Claimant entitled to
Scheduled Tribe status of his origins in which, his community is
specified as Scheduled Tribes as per the Constitutional orders. It is
also settled that the person does not cease to belongs to his Caste by
migrating to a better and more socialfree
and liberal atmosphere and
cannot be treated to be a member of a forward Caste. The State
Government and/or its Scrutiny Committee and/or Officers cannot go
beyond the clear Constitutional provisions and the Supreme Court
decisions referred above. It binds all.
27 The Division Bench of this Court in Smt. Sangita
Sahebrao Bhalerao Vs. The State of Maharashtra & Ors. in Writ
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Petition No. 6744 of 2011, by judgment dated 12 December 2013,
setting aside the order of invalidating the claim of one of such
Applicant, belongs to “Thakur” Scheduled Tribe as the Scrutiny
Committee failed to note the other evidence placed on record, though
unable to place any material of the restricted area, by relying upon the
Palghat (Supra) and allowed the Petition by further observing that
the claim cannot be rejected solely on the ground that the affinity test
was not established. Similar reliefs have been granted in Pawan
Ramkrishna Deore Vs. State of Maharashtra in (Writ Petition No.
6176 of 2012) by judgment dated 5 July, 2013, relying on Anand
(Supra). The Judgment cited by the learned counsel appearing for the
Respondents whereby, on merits, as the Applicant/Claimant failed to
prove the case, therefore, the order of the Scrutiny Committee
invalidating the caste claim were upheld. The concurrent findings so
given and if no case is made out, even the Supreme Court refused to
entertain and/or grant the benefits. There is no dispute with regard
to this proposition of law as individual cases are required to be dealt
with by the authorities, as well as, by the Court to grant and/or to
refuse the respective caste certificates. It all depends upon the facts
and circumstances of each case.
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AFFINITY TESTADDITIONAL
FACTOR:28
The issue of affinity test is also now further elaborated by
the Apex Court in Anand (Supra) in the following words:“
18 In the light of the aforesaid observations, the State of
Maharashtra enacted the Maharashtra Scheduled
Castes, Scheduled Tribes, Denotified
Tribes, (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and
Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 (for
short "the Act'). The Act made statutory provisions for
verification and scrutiny of caste claims by the
Competent Authority and subsequently by the Caste
Scrutiny Committee. In exercise of its rule making
power under the Act, the State notified the Rules
laying down a complete procedure for obtaining and
verification of Scheduled Tribes Certificate. Therefore,
insofar as the State of Maharashtra is concerned, the
verification and grant and/or rejection of Scheduled
Tribe Certificate by the Caste Scrutiny Committee has
to be as per the procedure prescribed in the Rules.”
“20 The Rules further stipulate that the Vigilance Officer
shall personally verify and collect all the facts about
the social status claimed by the applicant or his
parents or guardians, as the case may be. He is also
required to examine the parents or the guardians of
the applicant for the purpose of verification of their
tribe. It is evident that the scope of enquiry by the
Vigilance Officer is broadbased
and is not confined
only to the verification of documents filed by the
applicant with the application or the disclosures made
therein. Obviously, the enquiry, supposed to be
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conducted by the Vigilance Officer, would include the
affinity test of the applicant to a particular tribe to
which he claims to belong. In other words, an enquiry
into the kinship and affinity of the applicant to a
particular Scheduled Tribe is not alien to the scheme of
the Act and the Rules. In fact, it is relevant and
germane to the determination of social status of an
applicant.”
“22 It is manifest from the aforeextracted paragraph that
the genuineness of a caste claim has to be considered
not only on a thorough examination of the documents
submitted in support of the claim but also on the
affinity test, which would include the anthropological
and ethnological traits, etc., of the applicant. However,
it is neither feasible nor desirable to lay down an
absolute rule, which could be applied mechanically to
examine a caste claim. Nevertheless, we feel that the
following broad parameters could be kept in view
while dealing with a caste claim:
(i) While dealing with documentary evidence,
greater reliance may be placed on preIndependence
documents because they furnish a
higher degree of probative value to the
declaration of status of a caste, as compared to
postIndependence
documents. In case the
applicant is the first generation ever to attend
school, the availability of any documentary
evidence becomes difficult, but that ipso facto
does not call for the rejection of his claim. In
fact, the mere fact that he is the first
generation ever to attend school, some benefit
of doubt in favour of the applicant may be
given. Needless to add that in the event of a
doubt on the credibility of a document, its
veracity has to be tested on the basis of oral
evidence, for which an opportunity has to be
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afforded to the applicant;
(ii) While applying the affinity test, which focuses
on the ethnological connections with the
Scheduled Tribe, a cautious approach has to be
adopted. A few decades ago, when the tribes
were somewhat immune to the cultural
development happening around them, the
affinity test could serve as a determinative
factor. However, with the migrations,
modernisation and contact with other
communities, these communities tend to
develop and adopt new traits which may not
essentially match with the traditional
characteristics of the tribe. Hence, affinity test
may not be regarded as a litmus test for
establishing the link of the applicant with a
Scheduled Tribe. Nevertheless, the claim by an
applicant that he is a part of a scheduled tribe
and is entitled to the benefit extended to that
tribe, cannot per se be disregarded on the
ground that his present traits do not match his
tribes' peculiar anthropological and
ethnological traits, deity, rituals, customs,
mode of marriage, death ceremonies, method
of burial of dead bodies etc. Thus, the affinity
test may be used to corroborate the
documentary evidence and should not be the
sole criteria to reject a claim.”
“23 Needless to add that the burden of proving the caste
claim is upon the applicant. He has to produce all the
requisite documents in support of his claim. The Caste
Scrutiny Committee merely performs the role of
verification of the claim and therefore, can only
scrutinise the documents and material produced by the
applicant. In case, the material produced by the
applicant does not prove his claim, the Committee
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cannot gather evidence on its own to prove or disprove
his claim.”
“25 From the documents produced by the Appellant, it
appears that his near paternal relatives had been
regarded as belonging to the 'Halbi' Scheduled Tribe.
The Vigilance Officer's report does not indicate that the
documents produced by the Appellant in support of his
claim are false. It merely refers to the comments made
by the Head Master with reference to the school
records of Appellant's father's maternal brother and his
aunt, which had been alleged to be tampered with, to
change the entry from Koshti Halba to Halba and
nothing more. Neither the Head Master was examined,
nor any further enquiry was conducted to verify the
veracity of the Head Master's statement. It is of some
importance to note at this juncture that in similar
cases, involving the Appellant's first cousin and his
paternal uncle, the High Court, while observing nonapplication
of mind by the Caste Scrutiny Committee,
had decided a similar claim in their favour.”
29 The requirement of affinity test in view of above,
therefore, cannot be overlooked by any one. But it is also clear that it
cannot be the sole criteria to reject and/or to grant certificate in every
matter. If the case is made out, even the affinity test, though there are
no supporting documents, and or viceversa
may be taken into
consideration by the Committee while passing the reasoned order.
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THE APPROACH NEEDS TO BE CHANGED:30
The basic burden is upon the Applicant/Claimant, but at
the same stroke, the Scrutiny Committee is also required to evaluate
and/or review the material documents as it is a question of Scheduled
Tribe for generation. Therefore, the detailed, unbiased and
unprejudiced inquiry, information and reasoned decisions are
required. Even the result/report of Vigilance Committee for the
affinity test may be required to be revisited,
if the case is made out in
accordance with law. There is no total bar. The facts and the law
need to be tested by all on the touchstone of judicious mind and the
judicial power, considering the principle of ecosocial
justice.
31 Due to passage of time, and for various reasons, it is not
possible for every one to bring on record the documents and/or
supporting the oral, as well as, the material and/or to pass affinity test
by answering the questions referring to trait, tradition and culture.
The balance needs to be stuck by all the concerned. The nonavailability
of old documents and even if the documents are available,
are of not belonging to the region or area, just cannot be the reason to
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deny the certificate/claim. Every concerned person, started to collect
the information and/or insisted for such documents only after 1950,
when the Parliament has decided to extend the protection benefits to
all the Scheduled Tribes. The restriction though put in modified order,
1956, which remained for 20 years, again created the embargo to
claim such benefits as it was only for restricted area. After the Act of
1976, the Community/people again started collecting and/or
preparing the record for their purposes to claim their benefits. The old
documents or oral evidence of forefathers or father and/or older
people of community, may or may not be available, therefore, the
Scrutiny Committee required, to consider oral, as well as, the written
documents and/or evidence of every part of the State of Maharashtra
and in the given case of old State of Bombay.
32 The new generation and/or generation to come, therefore,
have no choice but to search and/or to collect the information from
the various sources including internet
and related books etc. This
approach of study and collection of the details of traits and culture of
the Tribes, bound to follow. All may not be in position to answer the
questions referring to traits, culture and tradition, because various
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reasons including generation gap and long time migration. The
Scrutiny Committee and/or the Vigilance Cell and/or Research
Officers are also therefore, required to inquire and confirm the
position by collecting the information and interviews of the
Applicants/Claimants. Those officers based upon their
knowledge/experience, may be the expert body in view of their study
and research, but the practical part of human life to keep the
information and to maintain the trait and culture and/or the rights
and/or the customs, in view of the modernization and basically for the
new generation, is again the aspect which required to keep in mind
while interviewing and/or putting the question before preparing the
Vigilance report. The Vigilance or Surveyor Officer, just cannot be the
sole authority to play important role to grant and/or to reject the
claim of the Person/Applicant/Claimant in every matter. Those
answers also should not be the sole reasons to associate and/or
disassociate the claims with particular Tribe and/or Community. Once
the trait is established and the requirement is insisted upon and the
importance is given to the interview and vigilance report, even the
new generation after due research and the particular tribe may or may
not be able to answer the questions and would be or would not be in
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position to interview/test successfully. The Scrutiny Committee, in
our view therefore, required to take into consideration the whole facts
and the documents. This in no way dilutes the importance of the
affinity test as already recorded above. They have to decide the claim
of the Applicants on merits after due verification and inquiry and after
collecting the information, within the power and the jurisdiction.
33 It is also relevant to note that the affinity test or vigilance
report is necessary only in case of doubts and/or no material and/or
supporting material placed on record. If the valid and genuine
supporting material placed on record, the Scrutiny Commitee is
empowered to grant and/or validate the certificate, after due inquiry.
There is no total bar even for this practice and procedure.
THE RELATIVES CASTE CERTIFICATES/DOCUMENTS:34
Another aspect, which is relevant in view of the
submissions so made and raised by the learned counsel appearing for
the parties, that the Caste Scrutiny Committee has rejected the claims
and/or invalidated the claims, even by overlooking the similar Caste
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Certificates/documents issued to the Claimants' /Applicants relatives.
This issue therefore, is also required to be considered while testing the
cases of claimants/Applicants specifically when, as by the impugned
orders, the Scrutiny Committee invalidated their caste on this ground
also.
35 The Apex Court in Amruta Vijay More Vs. State of
Maharashtra (in Civil Appeal No. 7230 of 2011 @ SLP (C) No. (s).
29364 of 2010), by reasoned order dated 23 August 2011 interfered
with the order passed by the High Court, whereby the Caste Scrutiny
Committee recorded the findings that the Appellant did not belong to
the “Thakur” Scheduled Tribe by overlooking the similar certificates of
the relatives of the Appellant. The Apex Court has read and
distinguished even the order of the Hon'ble Supreme Court in Raju
Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar & Ors. 13 relied by
the State of Maharashtra and others supporting the impugned orders
and other such Judgments and observed as under:“
8. Having considered the submissions made on
behalf of the respective parties and also having examined the
impugned decision of the Division Bench of the Bombay High
13 2008(9) SCC 54
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Court, we are unable to sustain the same for the following
reasons:In
the present case, it was the Screening Committee
of Nasik which had earlier granted caste validity
certificates to the appellant's father, paternal uncle,
brother and paternal cousins and it would be
completely unfair to the appellant if we were to
accept the finding of the Screening Committee that
despite the above, the appellant did not belong to
the Thakur Scheduled Tribe. The decision on which
reliance has been placed by learned counsel for the
respondents is clearly distinguishable on the ground
that in the said case, the father and his uncle were
shown to be of 'Koshti' caste, which was later
recognized as “Halba” and one of the appellant's
cousins had been shown to be a member of the
'Halba' community. In the said case, a further
question arose as to whether 'Koshti' would be subcaste
of 'Halba' or 'Halbee' and whether 'Halba' or
'Koshti' is a subdivision
of 'Halba' or 'Halbi', as per
Entry 19 in the Act having application to
Maharashtra. It is in the context of such facts and
controversies that the aforesaid decision was
rendered. In the instant case, the Caste Screening
Committee had clearly found the father, paternal
uncle, brother and paternal cousins of the appellant
to belong to the Thakur Scheduled Tribe. The
subsequent decision of the Screening committee
solely on the basis of an Affinity Test, in our view,
does not stand scrutiny. The Division Bench of the
High Court did not also go into this question, as
was expected, but merely dittoed the observations
made by the Screening Committee.”
(Emphasis added)
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36 We have also in Sanjay Pralhad Pardeshi Vs. State of
Maharashtra, Writ Petition No. 6800 of 2013, by order dated 18
February 2014, by referring to the earlier judgments of this Court,
granted the relief by observing as under:“
4. In view of no contra material on record, the
certificate, in our view, just cannot be overlooked basically
when there is no finding of fraud and/or misrepresentation. It
is difficult to accept the reason so provided by overlooking the
above position, while rejecting the claim of the Petitioner and
also in view of the Judgment of Division Bench of this Court
(Apoorva D/o Vinay Nichale Vs. Divisional Caste
Certificate Scrutiny Committee & Ors.) 14 . The Division
Bench of this Court, (Anoop V. Mohta and Z.A. Haq, JJ) has
also taken a view in Vaishali Chatarsingh Ingale (Thakur)
Vs. Committee for Scrutiny and Verification of Tribe
Claims, Amravati & Ors. 15 . and noted in paragraph No.5 as
under:5.
…..
“Where a committee has given a finding about the
validity of the caste of a candidate another committee
ought not to refuse the same status to a blood relative
who applies. A merely different view of the same facts
would not entitle the committee dealing with the
subsequent caste claim to reject it........”
The Same view is also taken by another Bench of this Court
in Mayur S/o. Shamrao Nannaware Vs. Scheduled Tribe
Caste Certificate Scrutiny Committee, Gadchiroli. 16
14 2010(6) Mh.L.J. 401
15 2013(6) Mh.L.J.251
16 2014(1) Mh.L.J.437
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MORE REASONS:37
The increase in number of such Caste claim or Petitions, in
no way can be the reason not to decide the individual cases in
accordance with law. To deny the Caste/Tribe benefits to the deserving
candidates/community/Tribe is nothing but injustice to them but, at
the same stroke to grant such certificates/benefits to undeserving, is a
great injustice to all. The balance needs to be maintained by all. The
present place of residence and/or permanent residence is also no
decisive factor and/or sole criteria to reject and/or grant the claim.
Any claimant from “Thakur” Scheduled Tribe from the State of
Maharashtra can apply and/or claim the benefits.
38 All the judgments cited by both the sides are fact based
decisions. In some matters, the Apex Court did not interfere with the
orders passed by the Scrutiny Committee, as upheld by the High
Courts. There are cases read and referred by the parties, where the
Apex Court interfered with the findings, as well as, the orders passed
by the High Courts and directed to grant certificates and/or remanded
the matter for reconsideration. Some basic cases are Pandurang
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(Supra) and Amol Narayan Wakkar & Anr. Vs. State of
Maharashtra & Ors . 17 . The Special Leave Petition against which
were dismissed on 12 July 1999 and 25 August 2005. Those
judgments were not referred and read including the Full Bench
Judgment (Shweta) (Supra) and Supreme Court Judgment (Mari
Chandrasshekhar Rao Vs. Dean, G.S. Medical College) 18 , where the
High Court in “Thakur” Scheduled Tribe matters, has not interfered on
merits for want of supporting material and documents and maintained
the order of invalidation. Therefore, those judgments are
distinguishable on facts and circumstances itself. Against such orders,
also Special Leave Petitions are pending with interim orders, in favour
of the Claimants, some of the orders are placed on record of the Writ
Petitions. Now, in view of recent judgment of the Hon'ble Supreme
Court Unnikrishnan (Supra) again reiterating the law laid down in
Palghat (Supra) and after considering the individual cases, we are
inclined to decide the issues by taking note of the similar issues and
similar pattern of reasons, so passed in the cases.
17 2005 (2) All MR 16
18 1990 (3) S.C.C. 130
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39 The Thakurs' recognition and/or certificates and/or
protection so granted to “Thakur Tribes” prior to modified order,
1956, were never taken away, when regional/districtwise
reservation
granted/declared. The material evidence/documents of the region
may be relevant, but other documents also cannot be overlooked to
support the claim of the Tribe. Once the regional restrictions are
removed, to say that the oral as well as the material documents
pertaining to other area are irrelevant and/or not to consider the
same, in our view, is totally unjust/incorrect approach, specifically
when all the parties are bound by the Constitutional orders and the
protection so provided to the Schedule Tribe in question.
40 We have gone through the reasons and the documents in
all the matters, as the same were placed for hearing/final disposal.
The reasons and the decisions and the conclusions so arrived at, in our
view, are relevant and it goes to the root of the matter to decide
individual cases on merits, as they have approached wrongly on law,
as well as, on the facts and passed stereotype
orders by framing the
wrong issues itself. We have dealt with those issues separately in this
Judgment/Order. The remand/reconsideration on all issues, therefore
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is desirable approach inspite of granting the reliefs as prayed in these
Writ Petitions in which we are intending to pass same orders. The
Scrutiny committee has misdirected
itself in law by overlooking the
documents and the relative certificates also.
41 The Scrutiny Committee misread the documents and
therefore concluded wrongly. All the school records, caste certificates,
birth and death certificates of relatives, the oral statements recorded,
the relatives certificate, documents may or may not be used for
granting or rejecting the claims. The totality of the oral and written
documents require judicious decision, not only as experts, but also as
judicial mind, considering the constitutional orders.
42 The stereotyped
decision on framing wrong issues like
restricting only for the Act of 1976 orders itself shows prejudged mind
and wrong approach, accordingly and lead to wrong order. There is
no question to overlook all the Constitutional orders relating to the
“Thakur” tribes. All the issues and the decisions on closed mind on
other documents and material itself is unacceptable and that lead to
wrong decision on merit of each matter.
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43 The Scrutiny Committee must give all opportunities to the
affected person. The evidence collected unilaterally by the Vigilance
Cell/Authority/Officer, if used against the claimant, all opportunities
be given to deal with the same. How the unilaterally collected
material be used against the party/claimant, when deciding legal and
Constitutional rights. The principle of natural justice needs to be
followed, in case of no specific rules. The opportunity needs to be
given to the person/claimant to rebut the presumption of decision of
Scrutiny Committee, if any, especially when against the Scrutiny
Committee order, the Writ Petitions are filed, and the Writ Court
under Articles 226 and 227, are required to go into the details of the
disputed question of fact and documents, though writ jurisdiction and
its scope is limited. The decision is required to be considered in Writ
Petition like Appellate Authority. The Writ Court needs to examine the
case on merits also, including the Vigilance Cell report, which just
cannot be overlooked.
44 The Apex Court in Ayaaubkhan Noorkhan Pathan Vs.
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State of Maharashtra 19 observed that:“
38. The Act 2000 and the 2003 Rules are based on the
directions issued by this Court in Madhuri Patil53 as the same
have been incorporated therein.
39. The correctness of the said judgment in Madhuri Patil53
was doubted, and the matter was referred to and decided by a
larger Bench of this Court in Dayaram Vs. Sudhir Batham54,
wherein, while deciding the various issues involved, including
the competence of this Court to legislate in this regard, it was
held as under: (Dayaram Case54, SCC pp.35354,
paras 3536)
“35. The Scrutiny Committee is not an adjudicating
authority like a court or tribunal, but an administrative
body which verifies the facts, investigates into a specific
claim (of caste status) and ascertains whether the
caste/tribal status claimed is correct or not....
36. Having regard to the scheme for verification
formulated by this Court in Madhuri Patil53, the Scrutiny
Committees carry out verification of caste certificates
issued without prior enquiry, as for example, the caste
certificates issued by Tehsildars or other officers of the
departments of Revenue/Social Welfare/Tribal Welfare,
without any enquiry or on the basis of selfaffidavits
about caste. If there were to be a legislation governing or
regulating grant of caste certificates, and if caste
certificates are issued after due and proper inquiry, such
caste certificates will not call for verification by the
Scrutiny Committees. Madhuri Pati l 53 provides for
verification only to avoid false and bogus claims.”
(Emphasis added)
Thus, it is evident from the aforesaid judgment in Dayaram54,
that the purpose of issuing directions in Madhuri Patil53 was
19 (2013) 4 SCC 465
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only to examine those cases where caste certificates had been
issued without conducting any prior enquiry, on the basis of
selfaffidavits
regarding one's caste alone, and that the said
directions were not at all applicable, where a legislation
governing or regulating the grant of caste certificates exists,
and where caste certificates are issued after due and proper
enquiry. The caste certificates issued by holding proper
enquiry, in accordance with duly prescribed procedure, would
not require any further verification by the Scrutiny
Committee.”
(Emphasis added)
“45. The Scrutiny Committee in ordinary circumstances
examined the matter and after investigation through its
Vigilance Cell and considering all the documentary evidence
on record and after being satisfied, granted the caste
verification certificate in 2000. Section 114 Illustration (e) of
the Evidence Act provided for the court to pronounce that the
decision taken by the Scrutiny Committee has been done in
regular course and the caste certificate has been issued after
due verification. Very strong material/evidence is required to
rebut the presumption......”
(Emphasis added)
45 The rebutable presumption and the grounds so raised in
all the matters and for above reasons, we are convinced that the case
is made out to give opportunity to the Petitioners. They have no
remedy left, but the challenge the order in Writ Petition only. (U.P.
Public Service Commission, Allahabad V s. Sanjay Kumar Singh) 20 .
20 (2003) (7) SCC 657
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46 One cannot overlook the position of Constitutional law
that a Scheduled Tribe person, who has migrated from the State of his
origin and/or his ordinary place of residence, after the first
Presidential Order, can get benefit from the State of his origin and not
from the State to which he has migrated. But once, the State of
Maharashtra also gives and covers such migrated “Thakur” Scheduled
Tribes, the benefits just cannot be denied to such Tribes. The Scrutiny
Committees and Vigilance Cell/Officers approach is wrong and
unconstitutional. The orders therefore, are illegal and contrary to the
law. This approach has not considered and/or even discussed in the
Judgments cited by the State against the Petitioners, apart from
merits, this itself is an additional reason to decide all these matters
afresh. (Uttar Pradesh Public Service Commission Vs. Madhu Rana
& Ors.) 21 .
47 To issue the caste certificate, never intended to mean grant
of benefits automatically. The scope of issuance of Caste Certificate
and its validation cannot be used and utilized to take away the
Constitutional benefits provided in view of Scheduled Tribe orders.
21 (2012) 12 SCC 132
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The certificate cannot be denied if the Tribe falls within the
Constitutional Schedules. The benefits may be restricted or taken
away by various other means, in view of change of scenario, living
conditions of the Tribes/Applicant, including following the principle of
“Creamy Layer” and/or other such concepts. The Applicant belongs to
a Tribe/caste cannot be granted a certificate of “open category”. The
caste/Tribe needs to be respected for all the purposes, even for the
future generation. The benefits may be restricted or waived, but only
in accordance with law.
CONCLUSION :48
All the parties including Authorities are required to follow
the provisions of the Act and the Rules made thereunder apart from
the principle of natural justice as elaborated and discussed in Anand
(Supra) and Shilpa (Supra).
49 The caste certificates and/or orders validating the
caste/tribe, based upon the procedure as followed prior to the Act are
also required to be considered by the Authorities, unless case of fraud
and/or misrepresentation
is made out. Those certificates, therefore,
cannot be overlooked while passing the order for or against in the
matters relating to the caste/tribe.
50 Oral as well as documentary evidence with regard to the
Thakur Scheduled Tribes, based upon the orders before restriction
and/or after restriction and/or after removal of restriction are also
required to be considered by the Authorities, based upon the origin
and/or resident of father and/or forefather of the Applicant's, at the
relevant time of the original Bombay State, the restricted area and
now whole State of Maharashtra.
51 As basic purpose is to give benefits/privileges to the
declared scheduled Tribe/caste in the State and/or in the area as per
the existing provisions of the Constitution Orders and also for the
reason that merely because claimant/Applicant shifted and/or
migrated in other part of Maharashtra, he does not cease to be a class
and/or Scheduled Tribe and a person belongs to the community.
(Palghat (Supra), Milind (Supra) and Unnikrishnan (Supra). The
Scrutiny Commitee therefore required to consider the whole material
available on record, oral as well as documentary, judiciously, fairly and
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with unbiased and unprejudiced mind.
52 The affinity test is very important element. (Anand)
(Supra) and Shilpa (Supra) and so also Vigilance Cell Report
and/or inquiry (Dayaram Vs. Sudhiram Batham) 22 and (Madhuri
Patil) (Supra). But that is not the sole criteria either to grant and/or
refuse caste claim/benefits. In a given case, if no documentary
evidence is available in any part of the State, the affinity test may be
relevant factor. The Scrutiny Committee, if satisfied, based upon the
documents placed on record, they can issue the caste certificate
and/or validating the caste. In case of doubts and/or dispute, the
inquiry, investigation and collection of information is necessary. In
such cases, the role of Vigilance Cell Officers and/or Scrutiny
Committee is also very important as, if case is made out, the writ court
and/or such other court may interfere with the finding of facts, if
there is perversity and/or illegality and/or breach of principle of
natural justice, there is no total bar.
22 2012 (1) SCC 333
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53 The Scrutiny Committee is required to consider the
relation certificates issued, on which reliance is placed by the
Applicant/claimant for the same caste certificate/benefits. It cannot
be overlooked and/or denied merely because those were obtained
prior to the Act and/or without due inquiry and/or passing the affinity
test, unless a case of fraud and/or misrepresentation is made out.
54 There is no scope and power given unless appropriate
proceedings initiated to invoke and/or revoke the certificates and/or
validation orders passed in favour of the relations, based upon the
then provisions available.
55 Therefore, all these elements are necessary to be tested
and considered by the Scrutiny Commitee before passing any order for
and/or against validating the certificate and/or grant of certificates on
merits.
56 In respect of Writ Petition No. 7343 of 2013:The
Scrutiny Committee misread the Judgments, as well
as, the provisions of law by overlooking the documentary evidence
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placed on record by the Petitioner in support of her case. The
documents against the Petitioner were only referred and concluded
the issue by observing that the PetitionersApplicants
failed to prove
her Tribal claim.
57 So far as the affinity issue is concerned, in view of above,
the Scrutiny Commitee needs to consider the provisions of law and the
purpose and the object behind it. The inquiry required to be extended
in view of the above observations and so also the opportunity to lead
evidence to show the affinity, but it cannot be on a restricted area, as
observed by the Scrutiny Committee. The particulars only of the
restricted area, just cannot be the foundation to deny the rights in
view of the above observations, basically in view of above
Constitutional Orders extending the protection of “Thakur” Scheduled
Tribe of whole State of Maharashtra.
58 The relation certificates, in view of above observations and
the reasons so given, also just cannot be overlooked. The Apex Court,
as well as, this Court after considering the facts and circumstances
including the Certificates directed the Scrutiny Commitee to validate
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the certificate in question.
59 The Judgments so cited and referred by the Scrutiny
Committee/Authority are on the basis of facts and circumstances of
each case. In view of above reasons we have given and the reasoned
Judgments of the Supreme Court, as well as of this Court, including
the Judgments which were not referred and/or discussed in the
authorities cited by the Special Counsel for the State of Maharashtra,
we see there is no reason to keep all the matters pending. The
pendency of such Petitions, is not in the interest of anybody.
Therefore, as we are clear that in the present case, the Authority has
overlooked the above principles, as well as, the provisions, we are
inclined to set aside the order with direction to the Authority to reconsider
the same as early as possible, preferably within 4 months
from today. We are also inclined to grant liberty to the parties to file
additional affidavit and/or material in support of the claim. The
Scrutiny Committee to pass order, after giving opportunity to all the
parties.
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60 In respect of Writ Petition No. 11472 of 2012, in this
matter also the Scrutiny Commitee failed to consider the above
principles and proceeded on wrong footing and therefore, we are
inclined to quash and set aside the order for the above same reasons,
i.e. nonconsideration
of the documents, affinity test, wrongly
overlooking the relation certificates and the Constitutional orders.
61 As Petition No. 3896 of 2013 is also covered on the similar
facts, as well as, on the grounds so referred above, therefore, for the
same reasons we are inclined to pass the following order.
62 Resultantly, the following order:ORDER
a) Impugned orders of Scrutiny Committee in Writ
Petition No. 7343 of 2013 dated 20 July 2013, in
Writ Petition No. 11472 of 2012 dated 4 October
2012 and in Writ Petition No.3896 of 2013 dated 13
December 2012 are quashed and set aside.
b) All the matters are remanded back to the respective
Scrutiny Committee, for reconsideration.
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c) The Scrutiny Committee to reconsider
every aspect,
by giving an opportunity to all the parties, in every
matter.
d) Liberty is granted to the Petitioners/parties to apply
before the Scrutiny Committee for filing additional
evidence, oral as well as, documentary material.
e) The Petitioners/parties to appear before the
concerned Scrutiny Committee, on 18 March 2014.
Thereafter, the Committee to fix the date and
programme accordingly with endeavour to dispose
of the matter as early as possible and within four
months from the date of receipt of Judgment/Order.
f) In case, Scrutiny Committee passes an adverse order
against the Petitioners/Claimants, the same should
not be given effect to and/or acted upon for four
weeks thereafter from the date of communication of
the order.
g) Rule made absolute in the above terms.
h) All the parties to cooperate.
i) There shall be no order as to costs.
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j) The interim protection, if any, granted by this Court
in Writ Petition/ Civil Application to continue until
the decision and four weeks thereafter. No question
of claiming any equities.
k) The parties to act upon the authenticated copy of
this Judgment/order.
63 The learned Special Counsel Mr. V.A. Gangal, appearing for
the RespondentState
of Maharashtra submitted to stay the effect and
operation of this common Judgment. However, considering the fact
that we are taken a view based upon the Constitutional provisions and
the recent Supreme Court Judgments, as well as, the Judgments
passed by this Court and also for the fact that the Petitions are
pending since long, there is no reason to stay further the
Judgment/Order. Even otherwise, we are remanding the matter for
reconsideration
and directing the parties to appear before the
respective Scrutiny Committee for fresh hearing, no reason to stay the
Judgment/Order. The oral prayer, therefore, rejected.
(A.A. SAYED, J.) (ANOOP V. MOHTA, J.)
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