Per: Virender Singh, J.;— 1. The petitioner is a member of J&K State Advisory Board for the Development of Gujjars and Bakerwal Tribals, as such, through the instant Public Interest Litiga tion, he shows inclination in safeguarding the rights of down trodden communities in the State and seeks issuance of appropriate writ in the nature of mandamus directing the respondents to constitute Scrutiny Committee to scrutinize Social Status Certificates issued in the State of J&K from 1991 onwards particularly Scheduled Tribe certificates and also to constitute a District level Scrutiny Commit tee as per the directions/guidelines framed by the Hon'ble Supreme Court in case titled 'Kumari Madhuri Patil & another v. Addl. Commissioner, Tribal Develop ment and others' reported as AIR 1995 Supreme Court 94 and reiterated in case titled 'Director of Tribal Welfare, Government of A.P. v. Laveti Giri' reported as AIR 1995 Supreme Court 1506. 2. The petitioner also seeks issuance of writ of certiorari quashing Sections 13, 14, 15, 16, 17 & 18 of Chapter V of J&K Reservation Act, 2004 (for short 'the Act') and Rules 18, 19, 20 & 21 of Part-V of J&K Reservation Rules 2005 (for short 'the Rules') issued vide Social Welfare Department Notification bearing SRO No.294 dated 21.10.2005, being ultra vires of the Constitution and contrary to the Supreme Court judgments. 3. On behalf of the respondents, Addl. Secretary, Social Welfare Department has filed the reply/compliance report. It is apposite to refer to para 4 of the said response. It reads:- "4. That, it is, submitted that Social Welfare Department being the Admin istrative department concerned, has been entrusted by the Government to ensure upliftment of weak and under privileged communities/sections of the Society and for their development in accordance with the directive principles as enshrined in the Constitution. Apart from this, different Boards have been established by the Government for upliftment of the said sections of the Society which are under the Administrative control of the Social Welfare Department i.e. State Advisory Board for Development of Pahari Speaking People, State Advisory Board for Development of Gujjars and Bakarwals, State Advisory Board for the Welfare & Development of Other Backward Classes, State Advisory Board for Development of Sched uled Castes and State Social Welfare Advisory Board.
As regards constitu tion of the committee as urged by the petitioner in the writ petition is concerned, all efforts have been made to ensure that problems of whatso ever kind being faced by the weak and under privileged sections of the society including Scheduled Caste and Scheduled Tribe Communities, are being redressed. The Government during periodical intervals is reviewing the functioning of the different Boards and also the communities so as to ensure their proper development and to remove shortcomings wherever identified. Vide Government Order No.207-SW of 2011 dated 22.11.2011, a Committee has been constituted to identify the Sub-Caste (Gotars) amongst the members of the Gujjars and Bakerwal communities for the guidance of certificate issuing authorities, copy of Government Order is annexed and marked herewith as Annexure-R-1. It is submitted that in the year 2000, the Government considered constitution of committee for identification of Sub-Caste of Gujjar and Bakerwal for the guidance of Scheduled Tribe Certificate issuing authority, but it was decided that the list of the candi dates selected belonging to Scheduled Caste/Scheduled Tribe shall be sent to the respective Boards. Copy of Cabinet Decision No.102/11 dated 30.06.2000 is annexed herewith and marked as Annexure-R-2. If there are any complaints regarding these lists, these may be referred to the Social Welfare Department for further action. It is submitted that because of the abnormal situation in the State during last more than two decades, initially much could not be done for betterment of these communities, but now every effort is being made to ensure their upliftment in every sphere. It is submitted that the constitution of a committee in tune with the guidelines issued by the Hon1?le Supreme Court is under examination of the Govern ment and every effort will be made to ensure that the guidelines as far as possible are followed in true spirit, notwithstanding the fact that the existing rules take care of the apprehensions expressed by the petitioner and in this view of the matter, the writ petition deserves to be dismissed. It is submitted that a proper mechanism is already in place for issuance of category certificates including Scheduled Tribe Certificates which is func tioning smoothly. The mechanism leaves hardly any scope for issuance of frivolous certificates.
It is submitted that a proper mechanism is already in place for issuance of category certificates including Scheduled Tribe Certificates which is func tioning smoothly. The mechanism leaves hardly any scope for issuance of frivolous certificates. It is submitted that on the basis of category certificates being issued by the competent authority, after adopting due procedures prescribed in this behalf, admissions are being made in professional col leges as also the candidates belonging to different reserved categories do get recruited on the basis of such reservations against different posts. As regards the challenge thrown to Sections 13 to 18 of the Reservation Act and Rules 18 to 21 of the Reservation Rules is concerned, the same is misdirected and misconceived, in that, these provisions do not suffer from any illegality. It is submitted that these provisions are comprehensive and provide for detailed procedures in respect of grant of certificates to different reserved categories including Scheduled Tribe Category. Incase any person is aggrieved, he has right to appeal and revision under the said provisions." 4. Heard learned counsel for both the sides. 5. To cut short the controversy, Mr. Choudhary states that may be in the instant writ petition he has asked for manifold reliefs including seeking issuance of writ of certiorari quashing certain Sections of the Act and the Rules framed there under, but primarily he seeks compliance of the Supreme Court directions, in particular, the directions issued in Kumari Madhuri Patil's case (supra) in which their Lord ships have directed for constituting a Scrutiny Committee so that the Social Status Certificates issued are scrutinized at the earliest and with utmost expedition and promptitude. Not only that, for the purpose of issuance of a Social Status Certificate, a procedure is to be streamlined, for which ten guidelines have been formulated. In this regard, Mr. Choudhary has drawn the attention to para 12 of the judgment in Kumari Madhuri Patil's case (supra). 6. Mr. Choudhary submits that in rest of the country the beneficiaries of fraudulent certificates have been detected and the beneficiaries thereof deprived of the benefit flowing out of such certificates. Learned counsel insists that there is no reason why such mechanism be not placed in position in the State so that the benefit intended for the SC/ST and other weaker sections does not go to undeserving candidates.
Learned counsel insists that there is no reason why such mechanism be not placed in position in the State so that the benefit intended for the SC/ST and other weaker sections does not go to undeserving candidates. It is argued that the State has prolonged the matter for the last seventeen years and even from the response now filed, it appears that no sincere effort is shown to have been made in this regard. 7. Mr. Basotra, learned Sr. Addl. Advocate General, appearing for the respon dents submits that the Social Welfare Department being the Administrative Depart ment concerned is making all its sincere endeavours to uplift the weak and under privileged communities/sections of the society and in this regard, different modes have been established by the Government which are under the direct Administra tive control of the Social Welfare Department. He states that reference to all those Boards constituted is already made in para 4 of the response. 8. Mr. Basotra, however, fairly states that no Scrutiny Committee has been constituted by the State although the Government during periodical intervals is reviewing the functioning of the different Boards so as to ensure their proper development and to remove shortcomings wherever they are identified. He submits that if there are any complaints regarding the issuance of Social Status certificate, all these complaints are referred to Social Welfare Department for further action. 9. Mr. Basotra submits that may be a mechanism is already in place for issuance of category certificate including Scheduled Tribe certificate, which is functioning smoothly and fairly, but assures the Court that a Scrutiny Committee shall also be constituted at the earliest strictly as per the guidelines laid down by the Hon'ble Supreme Court in Madhuri Patil's case (supra). 10. As regards the challenge thrown to certain Sections of the Reservation Act and the Rules framed there under as referred to hereinabove, Mr. Basotra submits that although all these provisions do not suffer from any apparent illegality, yet the State would have a re-look on all these provisions so as to bring them within the parameters of the guidelines formulated by Hon'ble Supreme Court leaving hardly any scope for issuance of frivolous certificate. 11. With regard to holding an enquiry vis-'-vis the certificates already issued in respect of Scheduled Tribe/Scheduled Caste categories, Mr.
11. With regard to holding an enquiry vis-'-vis the certificates already issued in respect of Scheduled Tribe/Scheduled Caste categories, Mr. Basotra states that it is an uphill ask for the State to scrutinize all the certificates as lacs of certificates have already been issued for the last so many years, but whenever any complaint is received from any quarter in this regard, the same is enquired into without consuming much time by the concerned authority(s). 12. Mr. Basotra, thus, submits that nothing survives in the instant Public Interest Litigation for prosecuting it any further. 13. Preamble to the Constitution promises to secure to every citizen social and economic justice, equality of status and of opportunity assuring the dignity of an individual. An endeavour of the State should be to fulfill the mandate of uplif tment of weak and underprivileged community/section of the society and for their development in accordance with the directive principles as enshrined in the Con stitution. If any one is wrongly gained on the basis of false social status certificate, it will have the effect of depriving the genuine candidate falling in said category. This can be the situation while getting the admission to the Educational Institutions or appointment to the office or posts under the State. Their Lordships while dealing with such like situation in Madhuri Patil's case (supra) observed in para 12 as under:- "12. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in comple tion of the inquiries by the Scrutiny Committee. It is true that the applica tions for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.
It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commis sioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal com munity, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate. 3. Application for verification of the caste certificate by the Scrutiny Com mittee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Wel fare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place 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.
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 com munities etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement 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,. nd claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the Com mittee and the Joint/Addl. Secretary as Chairperson who shall give reason able 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. 7.
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. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an 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 the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provi sional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/Miscellaneous petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowl edgement 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/ap pointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post." 14. Although the State has already prolonged the matter in constituting the ( Scrutiny Committee, which is a matter of great concern, yet we give another wake j up call to streamline the procedure at par with the Supreme Court directions. 15. In the said background, the instant Public Interest Litigation is disposed of I in the following manner:- 1. The respondents are directed to bring the mechanism devised under the Reservation Act and Rules made there under for grant/issuance of Social Status Certificate (Reserve Category Certificate) at par with the direction of the Supreme Court in Madhuri Patil's case (supra) so that all the chances of any malpractice at the stage of grant/issuance of certificates are ex cluded. Respondents in this regard may make necessary amendments in the provisions of the Reservation Act and Rules made there under. 2.
Respondents in this regard may make necessary amendments in the provisions of the Reservation Act and Rules made there under. 2. The respondents shall set up Scrutiny Committee at Division/District Level to scrutinize the Social Status Certificate (Reserve Category Certifi cate) already issued, at the instance of any person aggrieved with grant/issuance of such certificates on the grounds projected by the aggrieved so that the enquiry is completed expeditiously. 3. The respondents shall complete whole exercise preferably within a period of six months. 4. The petitioner shall be free to resist the matter in the event, any cause survives.