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Madhya Pradesh High Court · body

2007 DIGILAW 1004 (MP)

MADHVI KHAMBRA (DR. ) v. STATE OF M. P.

2007-09-18

ABHAY M.NAIK

body2007
ORDER Abhay M. Naik, J. This order disposes of W.P. Nos. 16631/06, 16338/06, 17043/06, 17044/06, 17045/06, since they involved a common question of law. Reference to Annexures is taken from W.P. No. 16631/06 because return has been submitted by the respondents/State in it and the same has been adopted in other writ petitions. Petitioners in all the writ petitions are private professionals. They claim themselves to belong to scheduled caste community in specific to be of Beldar community. It is not disputed that Beldar community is one of the Scheduled castes. Caste certificate showing the petitioners to be Beldar was issued by the concerning District Organizer Tribal Welfare, as revealed in Annexure P/2. A complaint was made against the petitioners that they do not belong to Beldar community. An enquiry was initiated on such complaints to examine the validity of the caste certificate issued in favour of the petitioners. The complaints in the first round were found to have no substance, however, on fresh complaints having been made, the Scrutiny Committee (Respondent No. 2) taking its cognizance issued show cause notices to the petitioners requiring thereby the petitioners to appear before the Committee on a particular date. Petitioners submitted their respective reply and participated in the enquiry conducted by the Scrutiny Committee pursuant to the various directions contained in the case of Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, . After enquiry, the Scrutiny Committee passed an order dated 24th of September, 2006 with a finding that the petitioners do not belong to the Scheduled Caste, namely, Beldar and the caste certificate issued in their favour by the concerning District Organizer Tribal Welfare is liable to cancellation. This order is marked as Annexure P/1 in all the writ petitions (Except in W.P. No. 16338/06 wherein it is marked as Annexure P/8). Contentions of the learned Senior advocate Shri S.C. Sharma and his colleague Shri Sujoy Paul, advocate is that the Scrutiny Committee was mandatorily required to serve the petitioners along with the show cause notice, a copy of report of the Vigilance Officer which formed the basis for the opinion of the Scrutiny Committee for holding that the petitioners do not belong to Beldar Scheduled Caste and that caste certificates issued in their favour are liable to cancellation. Accordingly, it is contended that Annexure P/1 and Annexure P/8 in W.P. No. 16338/06 are liable to be quashed and Scrutiny Committee may be directed to pass a fresh order after furnishing a copy of report of Vigilance Officer after providing a reasonable opportunity of hearing to the petitioners. Shri Vinod Mehta, G.A. for respondents/State on the strength of the return submitted in W.P. No. 16633/06 (copy whereof is placed on record as Annexure R/1) submitted that forefathers of the petitioners migrated from West Pakistan (Multan) in 1947 during partition. Although, the petitioners claim themselves to be Beldar by caste (which is one of the Scheduled Castes as per Presidential order of 1956 and 1976) and caste certificates are issued in their favour certifying their caste as Beldar (Scheduled Caste), High Power Committee was constituted which after taking into consideration the report of the Superintendent of Police arrived at a finding that the petitioners do not belong to Scheduled Caste. Accordingly, recommendation was made by the High Power Committee to cancel the caste certificate issued in favour of the petitioners. According to Government Advocate, the petitioners fully participated in the enquiry conducted by the High Power Committee and were not prejudiced in any manner. Accordingly, he contended that the writ petitions may be dismissed with costs. It is a settled law that the decision making process may be the subject matter of the judicial review by this Court and not the decision itself. The Apex Court in the case of Apparel Export Promotion Council vs. A.K. Chopra, (1999) J SCC 759 has held as under: the Court, in exercise of power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision making process. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision making process. It has been further observed that judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority. Hon'ble Supreme Court in the case of Madhuri Patil (supra) streamlined the procedure for issuance of social status certificate, their scrutiny and their approval which is as follows: 1. The application for grant of social status certificate shall be made to the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from the other particulars as may be prescribed by the concerned Directorate. Application for verification of the caste certificate by the Scrutiny committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. In the case of the Scheduled Tribes, the Research officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the concerned castes or tribes or tribal communities etc. The directorate concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the Committee and the Joint Addl. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the Committee and the Joint Addl. Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. In case the report is in favour of the candidate and found to be genuine and true, no further action need to be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the later even the same procedure as is envisaged in para 6 be followed. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificate. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. In case of any delay in finalizing the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. No suit or other proceedings before any other authority should lie. The High Court would dispose of these cases as expeditiously, as possible within a period of three months. In case, as per its procedure, the writ petition/Miscellaneous petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. In clause 6 above it has been clearly observed that on receipt of report from the vigilance officer if the Directorate concerned found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, show-cause notice must be issued to the concerned person, simultaneously, with a copy of the report of the vigilance officer. The person concerned is entitled to be served with a copy of report of vigilance officer by registered post AD with acknowledgment or through the head of the educational institution concerned or employer. Learned Government Advocate has made available the record of the High Power Scrutiny Committee wherein it is not revealed that the report of the vigilance officer (Superintendent of Police) was served upon the petitioner at the time of issuance of show cause notice. Learned Government Advocate has made available the record of the High Power Scrutiny Committee wherein it is not revealed that the report of the vigilance officer (Superintendent of Police) was served upon the petitioner at the time of issuance of show cause notice. This being so, procedure prescribed by the Apex Court in such matter is found to have been flouted. As per the Apex Court, it was obligatory on the part of the High Power Committee to serve the person concerned with the copy of report of the vigilance officer either by registered post AD or by hand at the time of issuance of show cause notice. This having been not followed, this Court is of the opinion that the order of the High Power Committee contained in Annexure P/1 in all petitions (Annexure P/8 in W.P. No. 16338/06) is unsustainable in law and is hereby quashed. Shri Mehta, learned Government advocate appearing for respondents/State fairly conceded that till today the petitioners are not served with a copy of report of vigilance officer. This being so, it is directed that the High Power Scrutiny Committee (respondent No. 2) shall serve the petitioners with a copy of report of vigilance officer (Superintendent of Police). Shri Mehta, learned government advocate for State contended that since the petitioners are being represented through their lawyers, copy of the report of vigilance officer may be provided to them. His contention is not acceptable in view of the circular dated 8-9-1997, placed on record as Annexure R/1. It clearly stipulates that if it is found on the report of vigilance officer that claim of the person for social status is doubtful, copy of the report of the vigilance officer shall be served on the persons concerned by registered post A.D. Considering the same, it is directed that the respondent No. 2 shall serve the petitioners with a copy of report of Superintendent of Police within a period of 15 days from the date of receipt of certified copy of this order. Thereafter, the petitioners shall have a right to submit their objections within a further period of 15 days. The High Power Scrutiny Committee shall proceed with the further enquiry in accordance with law after providing opportunity of hearing to the petitioners. Thereafter, the petitioners shall have a right to submit their objections within a further period of 15 days. The High Power Scrutiny Committee shall proceed with the further enquiry in accordance with law after providing opportunity of hearing to the petitioners. The matter may be decided by the High Power Scrutiny committee expeditiously, in accordance with law and the procedure laid down in the case of Kumari Madhuri Patil (supra). Accordingly, the writ petitions stand disposed of. C.C. as per rules.