REPORTABLE

IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NO. 2723 OF 2015

DIST. COLLECTOR SATARA & ANR.     … Appellant(s)

VERSUS

MANGESH NIVRUTTI KASHID    …Respondent(s)

WITH

C.A. No. 2727 of 2015 C.A. No. 2728 of 2015 C.A. No. 2729 of 2015 C.A. No. 2730-2731 of 2015 C.A. No. 2732 of 2015 C.A. No. 2734 of 2015

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The  freedom  at  midnight  was  followed  by  the  framing  of  the

Indian  Constitution.  The  Constitution  of  India  (for  short  ‘the

Constitution’) took special care, given the social and economic scenario

1

of our country, to provide for certain special benefits and privileges for

persons  from  the  under-privileged  communities,  i.e.,  the  Scheduled

Castes (for short ‘SCs’) and the Scheduled Tribes (for short ‘STs’).  Thus,

while prohibiting discrimination on grounds inter alia of race and caste,

under  Article  15  of  the  Constitution,  while  providing  for  equality  of

opportunity  in  matters  of  public  employment  under  Article  16  of  the

Constitution, an enabling provision was made for providing reservation

to  people  of  these  categories.   In  fact,  Article  17,  abolishing

untouchability, was one more provision in this direction.

2. In  the  implementation  of  the  aforesaid  objectives,  it  became

necessary  to  issue  caste  certificates  for  obtaining  employment  and

admission to  educational  institutions.   Unfortunately,  this  gave rise  to

vast area of malpractice as non-entitled persons managed to obtain such

certificates for availing the benefits.  This endemic problem forms the

basis for the jurisprudential discussion in Kumari Madhuri Patil & Anr.

v.  Additional  Commissioner,  Tribal  Development  &  Ors1(Kumari

Madhuri Patil).

1 (1994) 6 SCC 241

2

3. The facts in  Kumari Madhuri Patil2 case itself are an illustration

of this problem.  The appellant  before the Court was seeking a Caste

Certificate on the basis of a Caste Certificate obtained by her sister, who

was claiming on the basis of their father having obtained caste certificate,

certifying him to be of ‘Hindu Koli’ caste.  On investigation, the caste

claims were found to be wrong and the certificates issued to the appellant

therein and her sister were cancelled.  This Court in the Kumari Madhuri

Patil3 case, while discussing the various provisions of the Constitution,

emphasised that the State was enjoined under our constitutional scheme

to provide facilities and opportunities to the SCs and STs for education

and employment, so as to result in economic improvement, resulting in

excellence, equality of status and the right to live in dignity.  Thus, any

admission  wrongly  gained,  or  employment  wrongly  obtained,  on  the

basis of a false social status certificate automatically has the effect  of

depriving  a  genuine  person  for  whose  benefit  the  rights  have  been

conferred  under  the  Constitution.   Simultaneously,  in  view  of  the

reservation, a General Category candidate loses the seat to an ineligible

candidate,  who really  does  not  belong to  the  SC/ST community.   No

2 (supra) 3 (supra)

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proper procedure or legislation provided for the checks and balances in

issuance of  these caste  certificates and,  thus,  in the  Kumari  Madhuri

Patil4 case, it was deemed necessary to issue directions to streamline the

procedure for issuance of the social status certificates.  There were fifteen

(15) directions issued, but the two directions, which are relevant for the

controversy raised in the present appeals, are as under:

“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 department concerned,  (II)  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.

5. 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

4 (supra)

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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.”

4. The objective of issuing all these directions is enunciated in para

14 of this judgment, which reads as under:

“14. Since this procedure could be fair and just and shorten the undue  delay  and  also  prevent  avoidable  expenditure  for  the State on the education of the candidate admitted/appointed on false  social  status or  further  continuance therein,  every State concerned should endeavour to give effect to it and see that the constitutional  objectives  intended  for  the  benefit  and advancement  of  the  genuine  Scheduled  Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons.”

It appears that these directions from the date of their issuance, on

2.9.1994 apparently seem to have worked well.  The State of Maharashtra

sought a review of this order, limited to the aspect of modification in the

composition  of  the  Scrutiny  Committee,  on  account  of  certain

administrative  exigencies.   This  request  was  acceded  to  in  Kumari

Madhuri Patil & Anr. v. Addl. Commr., Tribal Development, Thane &

5

Ors.5 (Kumari Madhuri Patil-II) in the following terms:

“3.  As regards prayer (b) read with direction No. (iv)  of  the Order of this Court, we too appreciate the inconvenience caused due  to  vast  area  of  the  State.  Therefore,  instead  of  one committee  of  three  officers,  there  will  be  three  Scheduled Tribe/Caste Scrutiny Committees comprising of five members with quorum of three members, as suggested in para 4 of the directions, to take a decision. At Pune, Nasik and Nagpur, six Caste  Scrutiny  Committees  for  SCs,  Denotified  Tribes, Nomadic  Tribes,  Other  Backward  Classes  and  the  Special Backward  Category  in  existence  at  Mumbai,  Pune,  Nasik, Aurangabad, Amravati and Nagpur would continue to scrutinise the  certificates  issued  by  the  respective  officers  and  take  a decision in that behalf. In this regard, it is also suggested by Shri Dholakia, learned Senior Counsel for the applicant, that in case  any  certificate  has  been  wrongfully  refused  by  the certificate  issuing  authority,  the  aforestated  Committees  also would go into the question and decide in that behalf, whether refusal was wrongful and in case it finds that the refusal was wrongful, they are at liberty to direct the authority to grant the certificate.

4. With regard to prayer (c) also, we feel that the Caste Scrutiny Committees  for  Social  Welfare,  Cultural  Affairs  and  Sports Department  should  comprise  of  Additional  Commissioner (Revenue)  — Chairman of  the  Revenue Division concerned; Divisional  Social  Welfare  Officer-Member;  and  Research Officer as a Welfare Officer-Member-Secretary to function in that behalf.”

5. It  appears  that  with the passage  of  time,  and on examining the

matter  in issue,  the State  of  Maharashtra  resolved to place before the

Assembly, a legislative enactment to cover aspects beyond education and

5 (1997) 5 SCC 437

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employment, for different categories of SCs, STs and Backward Classes.

The  law  was  so  enacted  vide The  Maharashtra  Scheduled  Castes,

Scheduled Tribes, De-notified Tribes (Vimukta Jatis),  Nomadic Tribes,

Other Backward Classes and Special Backward Category (Regulation of

Issuance  and  Verification  of)  Caste  Certificate  Act,  2000  (hereinafter

referred to as the ‘Act of 2000’), which was brought into force with effect

from 18.10.2001.  The Preamble of this Act reads as under:

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

WHEREAS it is expedient to provide for the regulation of the issuance and verification of the Caste Certificates to the persons belonging  to  the  Scheduled  Castes,  Scheduled  Tribes,  De- notified  Tribes  (Vimukta  Jatis),  Nomadic  Tribes,  Other Backward  Classes  and  Special  Backward  Category  and  for matters connected therewith or incidental thereto;”

6. The  Act  of  2000  provided  for  the  constitution  of  a  Scrutiny

Committee, while first defining Scrutiny Committee under Section 2(k)

of the ‘Definitions’ clause and then providing for the constitution of that

Committee under Section 6 of the Act of 2000.  The said Sections read as

under:

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“2. Definitions. In this Act, unless the context otherwise requires,- …. …. …. …. …. …. (k) "Scrutiny Committee" means the Committee or committees constituted under sub-section (1) of section 6 for the Scheduled Castes,  Scheduled  Tribes,  Denotified  Tribes  (Vimukta  Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for verification of the Caste Certificate and to perform the function of Scrutiny Committee under this Act;”  “6. Verification of Caste Certificate by Scrutiny Committee.

(1)  The  Government  shall  constitute  by  notification  in  the Official  Gazette,  one  or  more  Scrutiny  Committee(s)  for verification  of  Caste  Certificates  issued  by  the  Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of  jurisdiction of each of such Scrutiny Committee or Committees.

(2)  After  obtaining the Caste Certificate from the Competent Authority,  any person desirous of  availing of  the benefits  or concessions  provided  to  the  Scheduled  Castes,  Scheduled Tribes,  De-notified  Tribes  (Vimukta  Jatis),  Nomadic  Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to  the  concerned  Scrutiny  Committee  for  the  verification  of such Caste Certificate and issue of a validity certificate.

(3)  The  appointing  authority  of  the  Central  or  State Government,  local  authority,  public  sector  undertakings, educational  institutions,  Co-operative  Societies  or  any  other Government  aided  institutions  shall,  make  an  application  in such form and in such manner  as  may be  prescribed by the Scrutiny  Committees  for  the  verification  of  the  Caste Certificate and issue of a validity certificate, in case a person selected  for  an  appointment  with  the  Government,  local authority,  public  sector  undertakings,  educational  institutions, co-operative  societies  or  any  other  Government  aided

8

institutions who has not obtain such certificate.

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

7. It may, thus, be noticed that the Act, in the context of the judgment

in  the  Kumari  Madhuri  Patil6 case,  neither  specified  the  exact

composition of the Scrutiny Committee, nor incorporated the aspect of

the Vigilance Committee.

8. The Act of 2000 having come into force, the Scrutiny Committee

continued as constituted under the  Kumari Madhuri Patil7 case, and it

was assisted by a Vigilance Cell, once again, constituted in terms of the

said judgment.

9. In the year 2003, while exercising powers under Section 18(1) of

the Act of  2000, empowering making of Rules,  the State Government

brought  into  force,  The  Maharashtra  Scheduled  Tribes  (Regulation  of

Issuance and Verification of) Certificate Rules, 2003 (hereinafter referred

to as the ‘Rules of 2003’), with effect from 4.6.2003.  These Rules, as is

6 (supra) 7 (supra)

9

apparent from their description, were restrictive in application, to the ST

community.  These Rules further did not lay down any specifications for

the constitution of  the Scrutiny Committee,  other  than to provide that

there would be a Chairman, a Member Secretary and any other Member.

It is these Rules, legislated  as subordinate legislation, which brought in

the Vigilance Cell.  The relevant Rules read as under:

“10. Constitution of Vigilance Cell.-

The State Government shall constitute a vigilance cell to assist each  Scheduled  Tribe  Certificate  Scrutiny  Committee  for conducting enquiry which shall consist of,-

(i) A Senior Deputy Superintendent of  Police; (ii) Police Inspector (number of Inspectors depending upon

the number of cases); (iii) Police Constables to assist the Police Inspector; (iv) Research Officer.

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

…. …. …. …. …. ….

“12. Procedure to be followed by Scrutiny Committee.

(1)On receipt of the application, the Scrutiny Committee or a person  authorized  by  it  shall  scrutinize  the  application,

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verify  the  information  and  documents  furnished  by  the applicant,  and  shall  acknowledge  the  receipt  of  the application.   The  Member  Secretary  shall  register  the application,  received  for  verification,  in  the  register prescribed by the Chairman.

(2) If  the  Scrutiny  Committee  is  not  satisfied  with  the documentary  evidence  produced  by  the  applicant  the Scrutiny  Committee  shall  forward  the  applications  to  the Vigilance Cell  for  conducting the school,  home and other enquiry.

(3)The Vigilance Officer shall go to the local place of residence and original place from which the applicant hails and usually resides, or in case of migration, to the town or city or place from which he originally hailed from.

(4)The Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or the guardian, as the case may be.

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

(6)After  completion  of  the  enquiry,  the  Vigilance  Cell  shall submit its report to the Scrutiny Committee who will in turn scrutinize the report submitted by the Vigilance Cell.

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

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(8) If the Scrutiny Committee, on the basis of the Vigilance Cell report and other documents available, is not satisfied about the claim of the applicant, the Committee shall issue a show cause notice to the applicant and also serve a copy of the report  of  the  Vigilance  Officer  by  registered  post  with acknowledgement  due.   A copy  shall  also  be  sent  to  the Head of the Department concerned, if necessary.  The notice shall indicate that the representation or reply, if any, should be made within fifteen days from the date of receipt of the notice and in any case not more than thirty days from the date of receipt of the notice.  In case the applicant requests for adjournment or extension of the time-limit,  reasonable time, may be granted.

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

(b)After personal hearing, if the Scrutiny Committee is not satisfied  about  the  genuineness  of  the  claim  and correctness  of  the  Scheduled  Tribe  Certificate,  it  shall pass an order of cancellation and of confiscation of the Certificate and communicate the same to the Competent Authority for taking necessary entries in the register and for  further  necessary  action.   The  Scheduled  Tribe Certificate  shall  then  be  stamped  as  “cancelled  and confiscated.””

A reading  of  the  aforesaid  Rules  shows  that  the  role  of  the

Vigilance Cell was restricted as compared to the role envisaged under the

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Kumari Madhuri Patil8 case, inasmuch as the assistance to be provided

to the Scrutiny Committee was not in every case, but only if the Scrutiny

Committee was not satisfied with the documentary evidence produced by

the applicant.

10. It  appears  that  though  this  was  restrictive,  only  to  the  STs,

practically  speaking,  the  Committee  as  constituted  under  Kumari

Madhuri  Patil9 continued  and  verification  by  the  Vigilance  Cell  was

done as per the aforesaid Rules, even though it was so confined to the ST

category.   This  practice  apparently  continued  without  protest  or  any

further  clarification  from this  Court.   On seeking  clarification  in  this

behalf, we were informed that the Rules of 2003 were so followed on the

principle of application of an ‘analogous’ principle.

11. We may take note of another development, i.e.,  a challenge that

was  laid  to  the  constitutional  validity  of  the  guidelines  in  Kumari

Madhuri Patil10 case, which was referred to the Constitution Bench and

these directions were upheld in  Dayaram v.  Sudhir Batham & Ors.11

8 (supra) 9 (supra) 10 (supra) 11 (2012) 1 SCC 333

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The Constitution Bench opined that the directions issued were intrinsic

for  the  actual  realization  of  the  fundamental  rights  of  the  Backward

Classes  of  citizens.   However,  what  is  relevant  to  note  is  that  it  was

specifically opined that these directions would hold field so long as the

State  Governments  did  not  come  up  with  appropriate  legislations  to

substitute the norms laid down in the Kumari Madhuri Patil case.  It was

also opined that enquiry by the Vigilance Cell was to be considered to be

a  core  requirement  for  ascertainment  of  the  veracity  of  the  caste

certificate.  After discussing the aspect of judicial activism and judicial

legislation coupled with judicial restraint, it was opined as under:

“22.  Therefore,  we  are  of  the  view,  that  Directions  1  to  15 issued in exercise of power under Articles 142 and 32 of the Constitution, are valid and laudable, as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine  Scheduled  Caste  and  Scheduled  Tribe  candidates secured the  benefits  of  reservation  and the  bogus  candidates were kept out. By issuing such directions, this Court was not taking over the functions of the legislature but merely filling up the vacuum till  the legislature  chose  to  make an appropriate law.”

12. The Act of 2000, having a wider compass qua all the certificates to

be issued, it appears that there was some difficulty envisaged almost on

the anvil of the local Self-Government elections, to be held in the year

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2011.   The  controversy  in  issue,  thus,  begins  with  the  issuance  of  a

notification  dated  30.7.2011,  by  the  Social  Justice,  Special  Assistance

Department  of  the  State  of  Maharashtra,  exercising  powers  conferred

under Section 6(1) of the Act of 2000.  The provision reads as under:

“6. Verification of Caste Certificate by Scrutiny Committee. (1)  The  Government  shall  constitute  by  notification  in  the Official  Gazette,  one  or  more  Scrutiny  Committee(s)  for verification  of  Caste  Certificates  issued  by  the  Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of  jurisdiction of each of such Scrutiny Committee or Committees…”

13. It  is  the  case  of  the  State  Government  that  with  thousands  of

candidates seeking to contest the elections, an infrastructural boost was

required  to  meet  the  deluge  of  applications  for  the  issuance  of  caste

certificates  sought  for  contesting  the  elections.   In  terms  of  this

Notification,  thirty-five  district  level  committees  were  constituted  to

verify caste certificates of candidates who wished to contest the elections

to local authorities.  The Chairman of the Caste Scrutiny Committee was

specified  as  the  District  Collector  or  the  Additional  District  Collector

(IAS),  as  against  the  earlier  provision  of  Additional  Commissioner

(Revenue),  under  the  Kumari Madhuri  Patil-II12 case.   The  relevant

12 (supra)

15

portion of the said Notification is reproduced as under:

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

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

A reading of the extract of the aforesaid notification, thus, makes it

clear that the objective was to facilitate issuance of caste certificates for

“…verification of Caste Certificate of the candidates who (sic) willing to

contest for elective post in any local authority…”

14. The story that unfolded in this exercise is best illustrated by a chart

produced in the impugned judgment, which was the result of compliance

of directions issued in that matter.  The chart was made division-wise,

13 To be read as who are willing to contest…

16

with each district specified.  It is not necessary to reproduce the chart in

its entirety, but it suffices for our purpose to reproduce headings and the

final figures for the whole of Maharashtra:

PRAPATRA – B NECESSARY INFORMATION RELATING TO WRIT PETITION

NO.853/2012 IN THE HIGH COURT, BOMBAY.

Sr. No.

Name  of the Committee/ District

Total numbe r  of Validit y Certifi cates issued relatin g  to electio n

Validit y Certifi cates verifie d  by the Vigila nce Cell

Validit y certifi cates not verifie d  by the Vigila nce Cell

Numb er  of candid ates contes ting the electio n  to whom validit y certifi cates are issued

Numb er  of validit y certifi cates stamp ed only for electio n purpos e

The validit y certifi cates in which decisi on  is given in  one day.

The validit y certifi cates in which decisi on  is given in  two days

The validit y certifi cates in which decisi on  is given in three or more days.

1 2 3 4 5 6 7 8 9 10

…. …. …. …. …. ….

Total Maharashtra

36929 1427 35505 7664 4359 388 290 36251

15. The  aforesaid  would,  thus,  illustrate  that  there  were  some

certificates stamped only for election purposes, while others were not.

The manner of verification of these certificates would be evident from

the speed with which they were issued, making it difficult to accept that

there could have been any proper verification.   Columns 8 & 9 itself

17

show how the exercise was undertaken.  The lesser said the better about

this exercise!

16. It is in the context of these facts that the High Court was greatly

troubled while exercising the writ jurisdiction, where the prayer made by

the petitioners, inter alia, was qua caste certificates issued and not issued.

By an amendment, a writ was specifically sought seeking the quashing

and  setting  aside  of  the  aforesaid  Government  Resolution  dated

30.7.2011.  In these proceedings, through an elaborate judgment dated

4.5.2012,  this  Resolution was quashed,  with a  direction that  both,  the

matters  of  constitution  of  the  Committee  and  the  operation  of  the

Vigilance  Cell  (being  mandatory),  the  directions  in  Kumari  Madhuri

Patil14 case have to be given full effect to.  The original certificates issued

in pursuance of the Government Resolution of 30.7.2011 were directed to

be recovered from the respective persons and destroyed forthwith.

17. The aforesaid judgment was assailed in this batch of appeals before

us, and the operation of the impugned judgment was stayed  vide order

dated 30.7.2012.  The result has been that these certificates, issued under

the aforesaid circular, have continued to hold the field and the process

14 (supra)

18

followed has been as per the Act of 2000, read with the Rules of 2003.

18.   The next important development has been the enactment of the

Maharashtra  Scheduled  Castes,  Scheduled  Tribes,  De-notified  Tribes

(Vimukta Jatis),  Nomadic Tribes, Other Backward Classes and Special

Backward Category (Regulation of Issuance and Verification of) Caste

Certificate Rules, 2012 (hereinafter referred to as the ‘Rules of 2012’),

which  were  notified  on  31.8.2012.   These  Rules  are  comprehensive,

unlike the Rules of 2003.  The constitution of the Scrutiny Committee has

been provided for in Rule 11, while the constitution of the Vigilance Cell

is provided in Rule 12 of the Rules of 2012, and the same read as under:

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

(a) Divisional  Commissioner  or  Additional Divisional  Commissioner  (Revenue)  or Collector or Additional Collector  (I.A.S.)  or Additional  Collector  (Selection  Grade)  or Joint  Secretary  of  the  State  Government  or any  officer  not  below  the  rank  of  Joint Secretary to State Government  

Chairman

(b) Deputy  Commissioner  (Social  Welfare)  or Regional  Deputy  Commissioner  (Social

Member

19

Welfare) or Divisional Social Welfare Officer

(c) Research Officer or Assistant Commissioner (Social  Welfare)  or  Special  District  Social Welfare Officer

Member- Secretary

12.  Constitution  of  Vigilance  Cell.  –  (1)  There  shall  be  a Vigilance Cell to assist each Scrutiny Committee in conducting the field inquiry under rule 17.  The Vigilance Cell shall consist of, -

(a) Deputy Superintendent of Police or equivalent;

(b)Police Inspectors;

(c) Police Constables to assist the Police Inspectors.

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

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

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

19. It is relevant to note that, once again, the discretion has been left to

the  Scrutiny  Committee  to  solicit  a  report  of   vigilance  inquiry,  not

making it mandatory.  Thus, once these Rules were enacted, the process

20

of  verification  and  issuance  of  caste  certificates  has  proceeded  under

these Rules.

20. In the course of hearing these appeals, what undisputedly emerged

was that the window of period with which we are concerned is between

the Notification being issued on 30.7.2011 and the Rules being notified

on 31.8.2012.  The Rules have not been challenged by any one, and hold

the field.  Thus, we are not really required to go into what had happened

before the Notification came in, or after the Rules came in.  We may also

note that  the challenge before us is  in respect  of  only the certificates

issued for the purposes of local self-body elections, as nobody from any

other category has approached the Court.  Thus, as to whether the Rules

of 2003, applicable to the ST category, should have been applied to all

the  categories  on  an  ‘analogous’  principle,  does  not  require  our

adjudication.  Neither the certificates issued post the notification of the

Rules of 2012 require our adjudication.  It is only the interregnum period

that we are concerned with.  However, to deal with this interim period,

certain broader principles have to be discussed.

21.   An aspect noticed in the impugned order, in para 22, is the order

of  the  Division  Bench  of  the  Bombay  High  Court,  opining  in  Writ

21

Petition  No.2527/2009,  vide judgment  dated  20.1.2010,  that  the

appointment of the Additional Collector as a Chairman of the Scrutiny

Committee is not in accordance with law, and that this matter was the

subject  matter  of  appeal  before  this  Court  in  Special  Leave  Petition

No.6003/2010, which had been admitted on 5.7.2011.  In this behalf, we

have been informed that when the appeal was taken up for hearing, the

private respondents who had filed the petition withdrew the challenge to

the validity of  the Caste  Scrutiny Committee and wanted to move an

application before the High Court  for  disposal  of  the writ  petition on

merits.  Thus, the appeal was disposed of as infructuous.  The purpose of

this is only to note that no opinion has been rendered in that behalf.

22.   We may also note that there were three kinds of writ petitions

filed before the High Court.  The first set of writ petitioners were those

who intended to participate in the ensuing elections of local Government,

even though they did not, at that stage, have a caste validity certificate.

The  prayer  was  for  relaxation  of  the  condition  to  produce  the  caste

validity  certificate  at  the  time  of  scrutiny,  which  had  been  made

mandatory (though that certificate once issued was to remain valid for all

22

purposes).   The second set  of writ  petitioners were those whose caste

certificates were invalidated by the Scrutiny Committees, and they sought

to challenge  the decision with a  direction to  the Returning Officer  to

allow  them to  participate  in  the  ensuing  elections.   The  third  set  of

petitioners  were  those  who  challenged  the  Caste  Validity  Certificates

granted to the candidates who were party respondents in both petitions,

on the ground that the said certificates were obtained by fraud, with a

prayer for direction to the Election Commission to reject the nomination

papers of such candidates.  The impugned judgment has been rendered in

the context of the third set of petitioners.  The certificates in question

were alleged to have been obtained without vigilance reports and within a

very short period of time, as would be apparent from the chart aforesaid.

23. The grievance against  the impugned order,  however, is not only

confined to the third set of petitioners, but also to some of the second set

of  petitioners,  as  in  view  of  the  Scrutiny  Committees  not  being

constituted in accordance with the Kumari Madhuri Patil-II15 case, their

contention is that there was no validly constituted Scrutiny Committee,

which could invalidate their caste certificates.

15 (supra)

23

Composition of the Scrutiny Committees

24. The  impugned  order  is  predicated  on  a  reasoning,  as  if  the

judgment  in  the  Kumari Madhuri  Patil16 case,  as  modified  by  the

Kumari Madhuri Patil-II17 case, was engraved in stone, and it was not

open  for  the  legislature  to  have  enacted  law  at  variance  with,  or  in

derogation of the same.

25. On the aforesaid aspect, on hearing learned counsel for the parties,

we are unable to persuade ourselves to agree with the line of reasoning

adopted by the High Court.  The purpose of any judicial legislation is to

fill  a  vacuum.   It  does  not  preclude  legislators  from  enacting  law.

Judicial  activism  or  judicial  legislation  emerged  on  account  of  an

existence of vacuum, and it was opined that the Supreme Court would

not be constrained to fold its hands in despair and plead its inability to

help the citizen who has come before it for judicial redressal in such a

situation (Bandhua Mukti Morcha v. Union of India & Ors.18).  It has

16 (supra) 17 (supra) 18 (1984) 3 SCC 161

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been found by this Court that there is ample power conferred by Article

32, read with Article 142 of the Constitution to make orders which have

the effect of law by virtue of Article 141 of the Constitution, by issuing

directions to fill the vacuum till such time as the legislature steps in to

cover the gaps,  or the executive discharges its role (Vineet Narain &

Ors. v. Union of India & Ors.19).  A classic example of this has been the

seminal judgment of  Vishaka v State of Rajasthan20, which formulated

effective measures to  check the evil  of  sexual  harassment  of  working

women at the work place.  There are numerous judicial pronouncements

in this behalf,  but  they need not detain us further,  specifically for  the

reason that in the very judgment relied upon in the impugned order, i.e.,

the  Kumari Madhuri  Patil21 case,  the  Constitution  Bench,  while

examining  the  validity  of  the  directions  and  upholding  the  same had

clearly  observed  that  “by  issuing  such  directions,  this  Court  was  not

taking  over  the  functions  of  the  legislature  but  merely  filling  up  the

vacuum till the legislature chose to make an appropriate law.”22  Needless

to  observe  that  these  observations,  being  of  the  Constitution  Bench,

19 (1998) 1 SCC 226 20 (1997) 6 SCC 241 21 (supra) 22 Dayaram v. Sudhir Batham & Ors. (supra)

25

would be binding on us, and so would it naturally be on the High Court.

We may note that while noticing the directions in the Kumari Madhuri

Patil23 case, this Court had expressed a view that it was high time that the

Government  of  India  examine  the  matter  in  greater  detail,  and  bring

about  a  uniform legislation  with  necessary  guidelines  and  rules  (The

Director of Tribal Welfare, Andhra Pradesh v. Laveti Giri & Anr. 24) and

observed as under:

“8.  While  reiterating  the  above  guidelines  to  be  workable principles, it is high time that the Government of India would have the matter examined in greater detail  and bring about a uniform  legislation  with  necessary  guidelines  and  rules prescribing  penal  consequences  on  persons  who  flout  the Constitution and comer (sic.) the benefits reserved for the real tribals  etc.  etc.,  so  that  the  menace  of  fabricating  the  false records  and  to  gain  unconstitutional  advantages  by plain/spurious  persons  could  be  prevented.  Lest  they  would defeat  the  Constitutional  objective  of  rendering  socio- economic justice envisaged under Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38 and 39.”

26. If we examine the controversy in the conspectus of the aforesaid

legal position, insofar as the composition of the Scrutiny Committee is

concerned, no doubt the composition of the said Committee was directed

specifically in the  Kumari Madhuri Patil25 case,  and modified by the

23 (supra) 24 (1995) 4 SCC 32 25 (supra)

26

Kumari Madhuri  Patil-II26 case.   The  occasion for  modification  also

arose on account of large number of cases to be dealt with.  So long as

the  procedure  made   under  the  notification  or  legislation  meets  the

requirement of law, it cannot be said that the Committee has to be only as

per the directions of this Court.  We have already noticed that post the

Rules of 2012 being notified,  there is really no problem.  It  is not in

doubt that the power to issue the Notification dated 30.7.2011 did exist,

in terms of Section 6(1) of the Act of 2000.  Thus, the composition of the

Committee was made in pursuance of the specific statutory power.  It was

also to subserve the larger issue of setting up different committees by

decentralizing the process, to meet the requirement of verification of the

certificates.   As far  as  a  delegated  legislation  or  a  notification  issued

under statutory powers is concerned, the challenge can be laid only in

terms of well settled principles.  Either the  rule or notification is contrary

to  the  provisions  of  the  Act,  or  contrary  to  any  provision  of  the

Constitution, or brings about a conflict which is required to be resolved

by the Court.27  The challenge before us is not based on any of these

parameters,  but  is  simply on the ground that the notification is not in

26 (supra) 27 Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India  (UOI) and Ors., AIR 1986 SC 515.  

27

exact conformity with the directions issued by this Court in the Kumari

Madhuri Patil28 case.  Such a challenge would not be sustainable in view

of  the  settled  principles  of  examining  such  subordinate

legislation/statutory notifications. Thus, once the legislature lays down a

legislative policy, and confers discretion upon the administrative agency

for the execution of such policy, it is up to the agency to work out the

details within the framework of the policy.29

Requirement of the Vigilance Cell Report

27. The  second  part  of  the  challenge  relates  to  the  requirement  of

verification of the certificates by the Vigilance Cell.  This was provided

to be mandatory, in terms of the judgment in the Kumari Madhuri Patil30

case.  The enormity of the problems faced by the High Court, through

multifarious  petitions  arising  qua the  unverified  issuance  of  such

certificates, possibly persuaded the High Court to lay down stricter norms

in this behalf.  However, as implemented for the interregnum period in

question, the input from the Vigilance Cell was obtained only selectively.

Under  the  Rules  of  2012 also,  the  requirement  is  not  mandatory,  but

28 (supra) 29 Khambhalia Municipality v. State of Gujarat, AIR 1967 SC 1048 30 (supra)

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wherever  the  Scrutiny  Committee  feels  it  “may”  solicit  a  report  of

vigilance  inquiry.   We have,  however,  no  hesitation  to  emphasise  the

importance of proper verification of such certificates to be issued, and the

exercise  of  issuance  of  the  certificates  cannot  be  a  casual  one.   The

Scrutiny  Committee  constituted  to  issue  the  validity  certificates  must,

thus, at the slightest doubt take the assistance of the Vigilance Cell to

ensure  that  non-entitled  persons  do  not  get  benefitted  at  the  cost  of

entitled persons.  We have no doubt that this is a process which will be so

followed under the Rules of 2012.

28. The matter, however, cannot rest at this because the existence of

power and its exercise are two different aspects.  The view adopted by the

High Court, appears to us, to have been in the context of the manner of

exercise carried out by the Scrutiny Committee in the given situation, and

the casual manner in which the assistance of Vigilance Cell was sought

(or rather not sought).  On those aspects, we are in complete agreement

with  the  view  of  the  High  Court.   The  exercise  carried  out  in  the

interregnum  period,  between  30.7.2011  (when  the  Notification  was

issued) and 31.8.2012 (when the Rules of 2012 were notified) leaves us,

as  the High Court,  with grave doubt,  and we are of  the view that  no

29

proper exercise could have been carried out, or was carried out given the

time frame within which the caste certificates were issued.  The objective

was clear, i.e., to somehow facilitate as many people as possible, as soon

as possible, to contest the elections.

29. The troublesome aspect is that the validity certificates are not only

valid for that election, but also for subsequent elections.  They are not

only valid for educational purposes (except for some cases so restricted),

but also for all other purposes.  These validity certificates can possibly

become the basis for issuance of further certificates to the legal heirs.

Thus, we have no doubt that the exercise so undertaken cannot be upheld

and  has  to  be  quashed  with  the  direction  to  carry  out  the  aforesaid

exercise afresh.

30. The further development, by the enactment of the Rules of 2012 is

that the said mechanism is now available within the enacted Rules, itself.

Even  the  contesting  respondents  could  not  seriously  dispute  that  the

proper methodology, now, would be for a fresh verification exercise to be

carried  out  under  the  Rules  of  2012.   Learned  counsel  for  the  State

30

Government  could  also  not  seriously  dispute  this  exercise  to  be

undertaken under the Rules of 2012, but only expressed concerns about

the certificates already having been issued and the complication which

would be created by forthwith withdrawal of those certificates.

31. We do appreciate the problem aforesaid and are, thus, of the view

that the fresh exercise has to be undertaken within a period of six (6)

months from today,  i.e.,  on or  before 31.3.2020.   Till  this  exercise  is

completed,  the  existing  certificates  issued  for  the  interregnum  period

would hold good.  The exercise would have to be undertaken in respect

of all the certificates, except those cases where the validity certificate was

issued after verification by the Vigilance Cell.  We may, however, hasten

to add that, in view of the case pointed out to us, where the Vigilance Cell

opined otherwise and yet a caste validity certificate has been issued, the

exercise may be carried out afresh.  Thus, wherever there is an adverse

report of  the Vigilance Cell and yet  caste validity certificate has been

issued the exercise has to be carried out  afresh.  It  may be added that

those,  whose  caste  certificates  were  rejected  by  the  Caste  Scrutiny

Committee,  without  any  Vigilance  Inquiry,  may be  given the  right  to

31

appeal against such rejection, as per Rule 7 of the 2012 Rules.  

32. We may note  that  one  of  the  grievances  raised  by the  affected

private  respondents  before  us  is  that  though  they  were  impleaded  as

respondents, no notice was every issued and their matter was tagged with

the  main  matter  and  decided,  in  their  absence.   Thus,  they  had  no

opportunity to put forth their point of view.  In the same line, learned

counsel  for  the  State  of  Maharashtra  sought  to  place  before  us  the

problem where the directions now being issued to be carried out are with

respect  to  parties  who are  not  before us  and may be affected by this

exercise.

33. We are conscious of the aforesaid fact.  However, it is impractical

to  have  all  the  affected  parties  before  us.   Different  groups  in

representative capacities are before us.  In terms of the impugned order,

all  the original certificates issued by the specially constituted Scrutiny

Committees under the Government Resolution dated 30.7.2011 were to

be  recovered  from  the  respective  persons  and  were  to  be  destroyed

forthwith for  which three months  time was granted.  We have,  in  fact

while setting aside the impugned order on the question of law, directed

32

only  re-verification  of  the  certificates  as  to  whether  they  are  in

accordance with law on account of the doubts cast over them, as per what

we  have  set  out  aforesaid.  The  stand  of  the  aggrieved  parties  by  the

impugned judgment was, in fact, represented by the appellant before us.

Moreover, at the time of the fresh exercise of the validity certificate being

issued,  naturally  the  persons  who  have  been  issued  these  certificates

would be issued notice.  In our view that would suffice and the aforesaid

directions are also necessary to do complete justice  inter se the parties,

for which we have the benefit of Article 142 of the Constitution.  It will

be for the Caste Scrutiny Committee to carry out the aforesaid exercise,

while notifying the parties concerned, through appropriate public notices

in  this  behalf.   Directions  we  have  now  issued  would  ensure  the

objectives of the Act of 2000, i.e., issuance of certificates only to entitled

persons,  through  a  proper  exercise,  with  proper  assistance  from  the

Vigilance Cell.

34. We end with the hope that the aforesaid exercise would sub-serve

the  very purpose  for  bringing the  Act  of  2000 into  force,  and confer

benefits only on the entitled persons, while weeding out the non-entitled

persons.

33

35. The appeals are accordingly allowed, leaving the parties to bear

their own costs.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. October  01, 2019.

34