Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 813 (GUJ)

Vejeeben Bhikhalal Vash v. State Of Gujarat

2020-09-25

A.Y.KOGJE

body2020
JUDGMENT : 1. RULE. Learned AGP Mr.Dhawan Jayswal waives service of Rule on behalf of the respondents. 2. This petition under Article 226 of the Constitution of India is filed seeking directions to the respondent No.-2 Commissioner of Tribal Development Department to forward to the office of Government Administration Department and Home Department and to the Director General Of Police the scrutiny report in relation to caste certificate. 3. The issue in the petition pertains to the caste certificate of the petitioner. Learned advocate for the petitioner submits that the petitioner belongs to Schedule Tribe category as her forefathers were from the forest area of the Gir, Bharda and Alech. It is submitted that the caste of the petitioner was declared as Schedule Tribe vide notification dated 29.10.1956. It is submitted that as per the procedure prevailing the petitioner had applied for caste certificate before the Taluka Level Committee on 09.09.2009 and accordingly the petitioner was issued caste certificate bearing no.1 of 2010 on 17.02.2010. 4. The petitioner having completed her education, joined the Police Services as Police Constable in the Year 2016. Pursuant to the advertisement for the post of Police Inspector Class-2 on 17.07.2017 the petitioner applied after seeking necessary permission. The GPSC conducted necessary selection procedure, the petitioner being one of the successful candidate in the category of Schedule Tribe, her name appeared in the Merit List as she cleared examination with 277.50 marks. It is submitted that the petitioners name is at Serial No.114 in the Merit List and considered as successful candidate in the category of Schedule Tribe. The petitioner was accordingly issued call letter for oral interview and thereafter vide communication dated 20.09.2018 GPSC had informed the petitioner that the name of the petitioner is recommended to the State Government for further action. The petitioner was ordered to undergo the medical test which was conducted on 28.12.2018. 5. It is submitted that in the meantime the Range I.G. of Rajkot sent the caste certificate of the petitioner for verification to Office of the Commissioner Tribal Development Department and then after as per the procedure prescribed the caste certificate was scrutinized by the Vigilance Cell and scrutiny committee. 5. It is submitted that in the meantime the Range I.G. of Rajkot sent the caste certificate of the petitioner for verification to Office of the Commissioner Tribal Development Department and then after as per the procedure prescribed the caste certificate was scrutinized by the Vigilance Cell and scrutiny committee. All the necessary documents and verification with regard to the caste and under the meeting dated 13.09.2019 the scrutiny committee found the caste certificate to be legal and valid and found no inaccuracy of any manner for it was now for the respondent State Government to send such clearance certificate for the purpose of appointment of the petitioner to the post of Police Inspector Class-II. 6. It appears that the petitioner had made various representations in this regard and also an application under RTI Act as to what has obstructed the case of the petitioner. Since last two years the clearance from the Office of the Tribal Development Department has not been issued as a result of which the petitioner though a selected candidate to the post of Police Inspector Class-II is unable to get appointment and still continues to work as Police Constable. It is submitted that the case of the petitioner though once having been examined by the scrutiny committee as per the procedure prescribed by the judgment reported in case of Kumari Madhuri Patil V/s. Additional Commissioner Tribal Development reported in 1997 5 SCC 437 (SIC), 1994 (6) SCC 241 . Once the scrutiny committee has accepted the caste certificate of the petitioner there cannot be any other scrutiny of the petitioner’s caste certificate as the same would be against the procedure prescribed under the judgment of Kumari Madhuri Patil Supra. 7. Learned advocate has thereafter pointed out that in another case of the other candidates who were selected and low on merits have already been given appointment and in case of another candidate Smt. Kiran who is also of the same caste is already given posting, the petitioner has therefore legged behind for the appointment and posting. 8. As against this learned AGP referring to the affidavit in reply of the Assistant Commissioner of Tribal Development Department submitted that caste certificate of the petitioner was subjected to scrutiny as per the procedure prescribed. 8. As against this learned AGP referring to the affidavit in reply of the Assistant Commissioner of Tribal Development Department submitted that caste certificate of the petitioner was subjected to scrutiny as per the procedure prescribed. On account of a complaint received in general with regard to irregularity in issuing of caste certificate certain names were given of the selected candidates whose caste certificates were doubtful, as a result the procedure was undertaken by the Vigilance Cell as well as scrutiny committee and at one stage the Chairman of the Scrutiny Committee has noted that the document namely maswadi receipt which is the basis for issuance caste certificate be sent for FSL. Accordingly maswadi receipt copy was sent for FSL and FSL has given a report to indicate that there is erasing of some words in the maswadi receipt and some overwriting. As a result the report was prepared and the matter is pending for placing before the scrutiny committee for the FSL verification of the maswadi receipt. Learned advocate has drawn attention of this Court to the various communications in this regard and has also placed on record a copy of minutes of the scrutiny committee meeting. 9. He has drawn attention of this Court to the hand written note made by the Chairman of the scrutiny committee and also noting in the file of the Commissioner of Tribal Development is with regard to sending of maswadi receipt for FSL. It is submitted that as there is some doubt in the document which was basis for issuing caste certificate the case of the petitioner is under consideration and the decision would be taken by the scrutiny committee again. 10. As against this, in rejoinder learned senior advocate Mr.Jani has strongly objected to the process which is not recognized as scrutiny committee has already approved the caste certificate after taking into consideration all the relevant documents and when the minutes of the scrutiny committee does not indicate that it is the decision of the scrutiny committee to sent the maswadi receipt copy for the purpose of investigation by the FSL. The Chairman alone does not have any jurisdiction to take a decision independent of the committee, even if it is considered that the Chairman has placed his noting in handwriting still the decision of the scrutiny committee approving this caste certificate is of 13.09.2019 and it was only on 09.11.2019 the cognizance of such note was taken by the Commissioner of Tribal Development Department and was approved for sending the maswadi receipt for FSL. IT was also submitted that the noting in handwriting by the Commissioner appears to be mischievous move as in the noting on the file of the Commissioner of Tribal Development it is indicated that an oral instruction was issued by the Member Secretary and Deputy Commissioner of Tribal Development Department and Commissioner of Tribal Development for sending the maswadi receipt for FSL investigation. It is also submitted that even if the FSL report which is now placed on record by way of reply if taken into consideration than also the opinion of the FSL is not conclusive that the maswadi receipt is a fabricated document. 11. Having considered the rival submissions of the parties and having perused the documents on record. The issue before the Court primarily is that once the Vigilance Cell and Scrutiny Committee have undertaken the process of scrutinizing the caste certificate and approved it than the same decision be revived by any authority. 12. From the documents on record it appears that the petitioner was declared to belong to Schedule Tribe on account of the claim of the petitioner that her forefathers were residents of the forest area of the alleged, Gir and Bharda and belong to the Rabari community. The said Rabari community was included in the Schedule Tribe list by notification dated 29.10.1956, on the basis of such claim the petitioner on 09.9.2009 applied for the caste certificate to concerned taluka level committee and on 17.02.2010 the petitioner was granted caste certificate of Schedule Tribe being caste certificate no.01 of 2010. The said Rabari community was included in the Schedule Tribe list by notification dated 29.10.1956, on the basis of such claim the petitioner on 09.9.2009 applied for the caste certificate to concerned taluka level committee and on 17.02.2010 the petitioner was granted caste certificate of Schedule Tribe being caste certificate no.01 of 2010. It appear that that somewhere in the year 2018 the Office of the Commissioner of Tribal Development had received various representations making allegations that the candidates whose names were appearing in the said merit list of the selection process to the post of Police Inspector Class-II were having forged and fabricated caste certificate and such representation had cited names of such candidates on the basis of which it appears that an initial inquiry was undertaken and on 03.11.2018 and 27.12.2018 the inquiry was handed over by the Deputy Commissioner Tribal Development to the D.S.P. of Vigilance Cell to submit a report with regard to the caste certificate of some of the candidates. It appears that the Office of the IGP Administration on 08.02.2019 communicated to the Office of the Tribal Development names of 17 candidates who belong to the Schedule Tribe for verification of their caste certificate it appears that on 26.04.2019 the DSP Vigilance Cell had submitted a report on the inquiry entrusted to him opining to cancel the certificate of the petitioner issued on 17.12.2010. 13. In view of the aforesaid development, the petitioner herself approached DSP Vigilance Cell and submitted several documents which included maswadi receipt pedigree and letter issued by the RFO Jamjodhpur to support her case. In view of the aforesaid development the entire case of the petitioner was placed before the scrutiny committee on 08.05.2019 and it was decided to handover the case of the petitioner for the re-inquiry to the vigilance cell, accordingly on 19.08.2019 the communication was submitted to the DSP Vigilance Cell for re-inquiry of the case of the petitioner. On 04.09.2019 DSP Vigilance Cell submitted a report with an opinion that the caste certificate of the petitioner is valid. 14. On 04.09.2019 DSP Vigilance Cell submitted a report with an opinion that the caste certificate of the petitioner is valid. 14. From the record it appears that the noting dated 09.11.2019 was made on the file no.4169/2019 whereby the caste certificate of the petitioner was approved by the scrutiny committee in it s meeting dated 13.09.2019, the caste certificate of the petitioner was discussed in detail by the committee and the scrutiny committee ultimately approved however the Chairman of the committee signed with remarks to send the Maswadi receipts of case number 18 (of the petitioner) to the FSL and accordingly the process was undertaken for verification of maswadi receipt to the Chief Handwriting Expert, FSL, Gandhinagar. 15. The FSL has submitted its report on 26.02.2020 which is placed on record at R-10, wherein it is opined by the FSL that the specimen for examining by the FSL were found as “marks of eraser below the existing writings which indicate addition and alteration but previous writing could not be deciphered” the other specimen, “D2/1 to D2/9 were having no any addition and alteration is observed” and accordingly the Tribal Development Department has placed the entire file before the scrutiny committee. 16. The moot question therefore is that whether the scrutiny committee as a whole has opined for the FSL verification of the caste certificate or not. 17. The State Government has placed on record the committee report of scrutiny committee which took place on 08.05.2019 wherein the case of the petitioner was considered at item no.15 and after considering the report of the Vigilance Cell the committee had arrived at a conclusion that the Vigilance Cell to once again collect evidence which are referred to in its report dated 26.04.2019 and re-evaluate the supporting documents and the manner in which such documents are issued, it also included the maswadi receipt the pedigree which were produced by the Vigilance Cell on 08.05.2019 also be subjected for re-inquiry. Thereafter, in case of the petitioner the Vigilance Cell had submitted a report on 04.09.2019 to the Commissioner of Tribal Development along with the signing (check this word)scrutiny committee wherein the case of the petitioner was considered by the members of the Vigilance Cell and it was recommended to consider the caste certificate of the petitioner as approved. 18. Thereafter, in case of the petitioner the Vigilance Cell had submitted a report on 04.09.2019 to the Commissioner of Tribal Development along with the signing (check this word)scrutiny committee wherein the case of the petitioner was considered by the members of the Vigilance Cell and it was recommended to consider the caste certificate of the petitioner as approved. 18. The Court has perused the minutes of the meeting of the scrutiny committee dated 13.09.2019 wherein also in case of the petitioner which appeared at item no.18 of the Vigilance Committee meeting the case of the petitioner was duly considered and after observing with regard to the conclusion of the Vigilance Committee in the 1st sitting as well as the 2nd Sitting, it was resolved in the 2nd Sitting that on the basis of the inquiry report submitted by the Vigilance Cell and the documentary evidence produced by the candidates including the maswadi receipt the caste certificate was unanimously approved by the scrutiny committee. The last page of the scrutiny committee report bears the signature of all the three members of the scrutiny committee wherein only on the side of the signature of the Chairman of the Scrutiny Committee a hand written note is made which reads as under: “Case no.18 na pavti ne FSL ne mokaliye” the other noting which is illegible partly but does not indicate as to in what regard and for what purpose such noting is made but it is written as under: “illegible revisit karie, rechecking of maswadi receipt is essential” 19. If this committee report is to be compared with the noting in the file which is produced on Annexure R-9 at page 226 of the petition wherein it is noted as under: “Regarding verification of caste certificate of Vejiben Bhikhabhai Vash out of the said 17 candidates, caste certificate of Vejiben Vash has been approved in the meeting of the analysis committee held on 13.09.2019 as per the report dated 04.09.2019 of the Vigilance Cell, but as per the oral instruction of the Member Secretary and Deputy Commissioner of Tribal Development and as per the oral instruction of the Commissioner, details of Maswadi of the Vejiben is as under, which is sent to the FSL for further investigation. Details to be investigated Marking Candidate Name Maswadi’s Name Maswadi Receipt No. Sr. No Addition/Alteration D1 Vejiben Bhikhabhai Vash Rabari Jiva Bhaga 1573 1. Details to be investigated Marking Candidate Name Maswadi’s Name Maswadi Receipt No. Sr. No Addition/Alteration D1 Vejiben Bhikhabhai Vash Rabari Jiva Bhaga 1573 1. Addition/Alteration D2 Rabari Raghav Rana 36198 20. If the aforesaid noting made by the Additional Commissioner of Tribal Development Department is to considered than it clearly refers to the acceptance of the caste certificate in the scrutiny committee meeting dated 13.09.2019 at the same time refers to an oral instruction given by the Member Secretary and Deputy Commissioner of Schedule Tribe Development Board and oral instruction of the Commissioner that the maswadi receipt was sent for FSL investigation this noting does not refer to any written note by the Scrutiny Committee Chairman, moreover the timings of the Scrutiny Committee accepting the certificate on 13.09.2019 whereas the aforesaid notings were made on 19.11.2019 approximately after the period of two months. During this period of two months no stage is explained by the department. (i) Moreover, going through the record it is apparent that the petitioner’s case was already considered and the caste certificate was approved by the Scrutiny Committee. The perusal of the record as aforementioned does not indicate the manner and method in which the Scrutiny Committee has opined to review its own decision. The Court is of the view that a so called noting made by the Chairman of the committee does not reflect the view of the committee and the Chairman is not authorized singularly to take a decision on behalf of the committee. The Scrutiny Committee in an unequivocal terms have concluded to approve the caste certificate of the petitioner and therefore, the decision of the scrutiny committee as is reflected in the record stands final and cannot be changed on the basis of the noting made by one of the member of the committee. 21. In this regard the judgment of Kumari Madhuri Patil Supra is very clear as the Scrutiny Committee is made final authority to decide upon the caste certificate, it would be appropriate to reproduce the procedure prescribed under the directions of the Supreme Court in Para 12 of the said judgment. “12. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has 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. “12. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has 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 completion of the inquiries by the Scrutiny Committee. It is true that the applications 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. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: 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 and other particulars as may be prescribed by the Directorate concerned 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, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in 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 over-all 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 should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the 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 castes or tribes or tribal communities concerned etc. 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 educational institution concerned 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. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee 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 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. 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. 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. 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 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 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 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 educational institution concerned or the appointing authority by registered post with acknowledgement 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 from further study or continue in office in a post.” 22. 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 from further study or continue in office in a post.” 22. In view of the aforesaid, the Court finds that the proceedings undertaken by the respondent after the decision of the Scrutiny Committee are without any authority and against the procedure laid down in the judgment of Kumari Madhuri Patil Supra. For that the Court is of the view that once the Scrutiny Committee has approved the caste certificate of the petitioner, no further scrutiny is required to be made at any stage hence and therefore it is for the Tribal Development Department to forthwith proceed ahead for releasing the approval of the Scrutiny Committee of the caste certificate of the petitioner by undertaking necessary communication to the Director General of Police. Considering the fact that the petitioner is awaiting appointment letter though the petitioner is a candidate selected after due procedure way back in the year 2018 and that the other candidates selected along with the petitioner have already been selected and posted, it would be appropriate to direct the respondent to carry out necessary formalities within period of two months of the date of receipt of writ of order of this Court. 23. Before parting, it is necessary to observe that in the pleadings learned advocate has referred to the judgment of Kumari Madhuri Patil V.s Additional Commissioner Tribal Development reported in 1997 5 SCC 437 is not the correct citation which deals with the subject matter however the correct citation being 1994 (6) SCC 241 . 24. With the aforesaid directions, the petition stands allowed to the aforesaid extent. Rule is made absolute. Direct service is permitted.