B.P. Dharmadhikari, J.
1. On 17.4.2009, the learned Senior Advocates, as also the government Advocate appearing for the parties have pointed out that as per Orders of this Court dated 11.2.2009, the matter is to be disposed of finally at the stage of admission. Accordingly, we have taken up the matter at the end of admission board by making Rule returnable forthwith.
2. Challenge in this writ petition filed under Article 226 of the Constitution of India is to the order dated 26.11.2008 passed by the Scrutiny Committee invalidating the caste claim of the Petitioner as belonging to Bhandari Naik Community and also to the report of the Vigilance Cell dated 18.9.2008 submitted by the Sr. Superintendent of Police, to the Director of Social Welfare, Panaji, Goa.
3. This is the third writ petition filed by the Petitioner in same cause. The Petitioner has contested election from Ward No. 8 of Socorro Village and has been elected as Member or Pancha of Village Panchayat. This Court has, on 18.12.2008, granted ad interim orders whereby the invalidation of his caste claim by Respondent No. 1 Scrutiny Committee for Verification of Caste Certificate, hereafter 'Scrutiny Committee', has been stayed .
4. These elections were held on 5.6.2007. The ward was declared as reserved for O.B.C. category on 5.4.2007, by way of corrigendum by the State Government. The Petitioner decided to contest said elections and approached Gomantak Bhandari Samaj (for short 'Samaj'), an organization of Bhandari Naik community and the said Samaj on 11.4.2007 issued him a certificate mentioning that he belongs to Bhandari Naik Community, notified as OBC vide Goa Government Notification No. 13/1/97-SWD dated 30th June, 2000 and of Government of India, Ministry of Social Justice & Empowerment dated 16/1/2006. On the basis of the said certificate, the Petitioner applied to the Dy. Collector and S.D.M. Mapusa i..e. Respondent No. 2 in the present petition and the said authority granted him a certificate as belonging to OBC on 11.4.07 itself. It is not in dispute that Respondent No. 2 is the competent authority for Goa for issuing such status certificates. The Petitioner, then filed his nomination on 13.4.2007. Respondent No. 4 who is opposing the present petition ,a candidate belonging to OBC in that election raised objection to the said nomination paper disputing the caste claim of the Petitioner. On 15.4.2007, the Returning Officer rejected that objection and the Petitioner came to be declared elected on 7.5.2007.
5. Respondent No. 4 then approached the Samaj and on 8.5.2007, the Samaj withdrew the certificate and issued communication to Respondent No. 2 stating that the certificate dated 11.4.2007 issued by it was revoked and canceled. On 18.6.2007, Respondent No. 2 issued a show cause notice to the Petitioner, mentioning these facts and requiring him to point out as to why action should not be taken for fraudulently obtaining OBC certificate from his office by misrepresenting and by suppressing the material facts. In this background, on 25.6.07, the Petitioner applied to the Scrutiny Committee i.e. Respondent No. 1 for verification of his caste claim. On 3.7.3007, the Government of Goa issued a communication to all the Dy. Collectors and S.D.Os. mentioning that they were expected to issue certificates as per the guidelines of the Hon'ble Apex Court and not on the basis of the socials status certificate issued by any organization. It appears that some instructions to the contrary were earlier issued on 15.9.05 and by this communication, those were withdrawn. On 18.7.2007, the Vigilance Cell submitted the report to Respondent No. 1 Scrutiny Committee and on 25.7.97, the Ex-Officio Joint Secretary & Director of Social Welfare issued a communication to the Petitioner mentioning that the certificate issued by Respondent No. 2 in his favour was duly verified by the Scrutiny Committee and there were no 'adverse remarks' against him.
6. On 6.8.07, Respondent No. 4 then filed a complaint and raised objections against the certificate and verification. The complaint is addressed to Respondent No. 1 and its Ex-Officio Joint Secretary, as also Respondent No. 2. The Caste Scrutiny Committee then invited fresh report from the Vigilance Cell, and the Superintendent of Police (Headquarters) Panaji, Goa, forwarded the same vide communication dated 7.9.2007. In the said report, he mentioned that the inquiries with one section in the locality revealed the caste of Petitioner as Bhadari Naik, while with other section revealed the same to be Bane Develi. The said authority also made a mention that none of the parties produced any documentary evidence to establish the caste of the Petitioner. The inquiries before the SDM & Dy. Collector, Bardez and election petition before the Administrative Tribunal Court, Panaji are stated to be pending in it.
7. Respondent No. 4 then approached this Court in Writ Petition No. 460/07 and sought directions that the caste claim of the present Petitioner should be verified as expeditiously as possible. This Court, on 22.10.2007, while granting leave to Respondent No. 4 to withdraw the petition, recorded statement of the Advocate General that the Scrutiny Committee was re-verifying the claim of the Petitioner and re-verification would be done as expeditiously as possible after conducting inquiry. The Scrutiny Committee then vide its Order dated 29.1.2008, ordered cancellation of caste certificate observing that the caste certificate was obtained by the Petitioner by misrepresentation. The Petitioner challenged this order in Writ Petition No. 111/2008 and vide Order dated 16.7.2008 that writ petition was allowed after noticing that the Scrutiny Committee did not perform its duty as contemplated by the Hon'ble Apex Court in the Judgment reported in : AIR1995SC94 , Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. It was noticed that the verification of caste claim was not done independently and only because of cancellation of caste certificate by the Samaj, the scrutiny committee reached its conclusions. The matter was, therefore, remanded back to the Scrutiny Committee, keeping all the contentions open and directing it to complete the verification within a period of two months from the date of appearance of the parties.
8. On 26.8.08, the scrutiny committee called for fresh vigilance report. On 28.8.08, the PI i.e. Police Inspector, Porvorim called upon the Petitioner to remain present before him to inquire into his caste certificate. On 30.8.08, Petitioner sent communication to the said authority and informed that the said Police Inspector was not part of the Vigilance Cell, constituted by the Government vide its Circular dated 6.9.99 and, therefore, that authority had no jurisdiction and any inquiry conducted by it would be invalid.
9. On 12.9.2008, the Petitioner raised similar objections before the Scrutiny Committee. The Vigilance Officer appears to have submitted the report on 8.9.08, and the Petitioner objected to it in writing on 6.10.2008. The inquiry then proceeded further. The Petitioner participated in it, cross examined the Officer who submitted the Report, filed about 36 documents and also examined 19 witnesses. He relied upon 1928 catalogue of Mahajans of Sri Rudreshwar Temple and a sale deed dated 2.12.1941, in support of his contentions. He also pointed out that the report of Police Inspector, Porvorim about contacting one Parshuram Shirodkar and said Parshuram allegedly disclosing the caste of the Petitioner as Devli (Bane) was not correct. He placed on record affidavit of said Parshuram, contradicting these facts. It is in this background that after hearing the respective parties afresh, on 26.11.2008 Respondent No. 1 scrutiny committee passed the impugned order.
10. We have heard the Senior Advocate Shri S. G. Dessai with Advocate Shivan Dessai for the Petitioner, Senior Advocate Shri A.N.S. Nadkarni with Advocate D. Lawande for Respondent No. 4 and learned Govt. Advocate Rivonkar for Respondents No. 1 to 3. 11. The learned Senior Advocate for the Petitioner has, at the outset, pointed out the purpose of constitution of Vigilance Cell by relying upon the Judgment of the Hon'ble Supreme Court in Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. (supra), particularly para 13 and the guidelines 4, 5 and 7 therein. It is his contention that the Hon'ble Apex Court has laid down that the scrutiny committee has to independently verify the caste claim of the applicant before it. According to him, merely because the Petitioner fails to substantiate (as alleged) his caste claim, the certificate cannot be invalidated by the scrutiny committee. He states that in the present facts, there is no such independent effort by the Vigilance Officer and the documents filed by the Petitioner have been scrutinized only with a view to any how find out lacunae or mistakes. He had pointed out that the forefathers of the Petitioner were from Morlem in Bicholim Taluka and from there they migrated to Vazari in Pernem Taluka and lastly in Socorro in Bardez Taluka. It is his contention that these facts could have been verified by the Vigilance Cell and as that has not been done, there is failure to discharge the obligation cast upon the scrutiny committee and the Vigilance Cell in the matter. Advocate Dessai points out that the Samaj has an old temple by name Sri Rudreshwar Devasthan and grandfather of the Petitioner by name Mahadev Babani Naik was its mahajan. His name is recorded at Serial No. 1364 in the List of Mahajans, prepared way back in 1928. He invites attention to bye-laws of the said temple as published in 'Boletim Oficial'-gazette of the then Portuguese Government, dated 17.2.1928 and catalogue of Mahajans published with it. He points out the name of said grandfather written as Madeva Baboni Naique in the said catalogue. He further states that said document could not have been disbelieved only because after grandfather nobody else in the family is enroled as Mahajan of Lord Rudreshwar. He has pointed out that the family has migrated atleast twice thereafter and in these circumstances, the present status of family and its failure to have anybody recorded as 'Mahajn' cannot be relevant at all. He invited attention to excerpts from Anthropological Survey of India, Volume XXI (page No. 124 to 131) which deal with Kshatriya Bhandari/Naik Community in Goa in order to buttress his contention that the Petitioner has brought on record the relevant anthropological and ethnological traits which identify his community as said Bhandari Naik community. He further states that the scrutiny committee has not accepted the said Mahadev Babani Naik as grandfather of the Petitioner only because name of grandfather is differently written. He points out that during the Portuguese regime, the names were spelt differently and when the Petitioner/his witnesses have stated on oath that the said person was his grandfather, there is nothing before the scrutiny committee to discard that claim. He also invited attention to the fact that in the said catalogue of mahajans, surname 'Vazarkar' has also been included and he fairly states that this fact has not been pointed out to the scrutiny committee. He relies upon certain other surnames included in the said catalogue to show that the names of places where mahajans were residing after migration have been mentioned as surnames. He argues that backward class commission, has accepted that section of Bhandari Naik were also pulling carts and were cart owners. He invited attention to certificate of registration of birth dated 12.12.1962, in which name of his father has been mentioned as 'Arjuna Naique Ozarkar'. He points out that the birth of real brother of the Petitioner on 3.2.1954 has been recorded in it and occupation of his father has been mentioned as 'cart owner'. Similarly, he places reliance upon sale deed dated 2.12.1941 in which his grandfather 'Madeva Baboni Naique Ozarcar' has purchased immovable property. He points out that relationship of the Petitioner with the said Madeva is not in dispute at all. In view of this material, it is his contention that the scrutiny committee has failed to apply its mind properly to all the documents and there is failure to exercise the jurisdiction.
12. Without prejudice to his contention on merits about non- consideration of evidence of 19 witnesses and 36 documents filed by the petition on record, Adv. Dessai argues that as per bye-laws above mentioned, president of Samaj has no power to annul the certificate issued to Petitioner. He relies upon bye-law Nos. 4, and 44 to point out that once such certificate is granted, its revocation has to be only by general body. He points out that in present facts, the certificate has been given by the President of the said Samaj and its cancellation is also by the very same President and there is no resolution of general body & hence, the withdrawal of certificate is invalid in law.
13. He further states that the Superintend of Police (Headquarters), for and on behalf of the Director General, Panaji constituted Vigilance Cell on 6.9.1999 which comprises of Deputy Superintendent of Police, Crime Branch, CID; Police Inspector, Crime Branch, CID and the Police Inspector (ACB), Panaji. He contends that then occupants of the said post are named in the said order dated 6.9.1999 and, thereafter, the Vigilance Cell has not been reconstituted at any point of time. Police Inspector, Porvorim who issued the communication dated 28.8.08 to the Petitioner and allegedly prepared the Vigilance Report is not part of this Vigilance Cell and hence the report of the said authroity dated 18.9.08 cannot be recognized as legal and valid Report prepared in pursuance of the Hon'ble Apex Court Judgment in Kumari Madhuri Patil (supra).
14. Communication dated 23.4.07 issued by the Deputy Inspector General of Police does not modify the above mentioned Government Order dated 6.9.99 and it does not reconstitute the Vigilance Cell. He points out that the said communication only mentions that the Vigilance Officer has to visit the place of residence of applicant/claimant for verification of his caste claim and merely calling such applicant to the police station is not sufficient. He points out that in the present circumstances though the Police Inspector, Porvorim has stated that he had visited the place of the Petitioner, the Petitioner was not present at the relevant time and the fact of such visit is being denied by the neighbour Parshuram who filed affidavit before the Scrutiny Committee, denying such visit and any inquiry by the said Police Inspector with him. He has, therefore, contended that the said Vigilance Report dated 18.9.08 does not meet the requirements of the Judgment of the Hon'ble Apex Court and is liable to be quashed and set aside. It is his submission that once Vigilance Report dated 2.9.08 is quashed and set aside, it becomes essential to call for fresh vigilance report and the consequential order dated 26.11.08 by Respondent No. 1 Scrutiny Committee must, therefore, automatically fall to ground. To substantiate his objections to the Vigilance Report, the learned Senior Advocate has invited attention to cross examination of the Police Inspector, Porvorim conducted on behalf of the Petitioner before the Scrutiny Committee.
15. Senior Adv. Shri S.G. Dessai invited attention to another certificate of registration of birth dated 12.12.1962, in which name of Petitioner's father has been mentioned as 'Arjuna Naique Ozarkar'. He points out that the birth of real brother of the Petitioner by name Subhash on 5.5.1956 has been recorded in it. Certificate of registration of birth dated 12.12.1962, in which name of his father has been mentioned as 'Arjuna Naique Ozarkar' shows the birth of his real sister Sunita on 13.8.1951 & in these two certificates, occupation of his father has been mentioned as 'cart owner'. The three birth certificates issued by the then competent authority on the basis of these records on 12/12/1962 are also pointed out. Affidavit dated 3/7/2007 of Suresh Tukaram Naik son of Tukaram Babani Naik, paternal uncle of Petitioner Sandeep was pressed into service before the Scrutiny Committee to prove that family was using 'Naik' or 'Naik Vazarkar' or 'Vazarkar' or 'Ozarkar' as surname and it belonged to Gomantak Bhandari Samaj. Certificate dated 26/6/2007 issued by Samaj and dated 5/7/2007 issued by Dypt. Collector about caste of Suresh & birth certificate of Suresh dated 7/4/1993 showing Tukarama Babani Naique as his father were also pointed out to the Scrutiny Committee. Affidavit dated 25/10/2007 of one Madhukar Dhargalkar declaring that he belongs to Bhandari Naik caste and was secretary of Advisory Committee of said Samaj for Bardez area, that father Arjun Naik of Petitioner Sandeep belonged to Bhandari caste, that Arjun had bullock-cart, cattle & earned mainly through agriculture was also filed before the Scrutiny Committee. Affidavit dated 20/7/2007 by one Digambar s/o Narayan Kauthankar belonging to Bhandari community and declaring that Petitioner Sandeep belongs to said caste and is resident of Socorro, Bardez-Goa for last 65 years and Petitioner's family is known as Naik Vazarkar in community has also been relied upon. It is argued that this Digambar is relative of present Respondent No. 4. On the basis of this material, learned Senior Adv. contends that surname became 'Naique Ozarkar' after shifting to village Ozorium or Vazari and after shifting of family to village Soccorro, it became 'Ozarkar'. Our attention has also been drawn to the fact that only Respondent No. 4 objected to caste & nomination of the Petitioner & other contestants made no grievance.
16. Affidavit in evidence dated 21/10/2008 tendered by Anand Mandrekar declaring that he belongs to Samaj, that he was authorised as recommender for issuing Naik Bhandari caste certificates in Socorro area, that Petitioner Sandeep & his family belonged to said caste and people of said caste never go to eat food at Devli(Bane) community was relied upon. Affidavit in evidence of Kartik Kudnekar dated 21/10/2008 declares that Petitioner belongs to Bhandari Samaj. He has stated that Petitioner's uncle by name Narayan Mahadev Naik Vazarkar & Harischandra Mahadev Naik Vazarkar used to come to his residence to meet his father & his father as also Vazarkars were having bullock- carts. He also declared that his father used to say that Vazarkar family was Gadekars i.e. Bullock-cart carriers. Affidavit in evidence of Subhash N. Kinalkar dated 21/10/2008 declaring that he was registered member/Mahjan of Shri Dev Rudreshwar temple at Harvelem-Goa, that he was vice-president of said Devstan, that family of Petitioner used to come to temple for Shivratri & Shrawana Somwara, that Petitioner's grandfather Shri Mahadev Baboni Naik Vazarkar was the registered founder member of Devsthan, that his father told him that said Mahadev used to reside earlier at Morlem in Bicholim Taluka was also filed before the Committee. Affidavit in evidence of Sangesh Suhas Kundaikar dated 21/10/2008 ex-Secretary of Shri Dev Rudreshwar temple at Harvelem-Goa, that he knew Petitioner Sandeep & his brother Subhash, that his grandfather Mahadev was founder member of the Temple, that brother-in-law of Petitioner by name Gurudas Krishna Naik from Camurlim was known to him and that father of Gurudas Krishna Naik - late Krishna Bablo Naik Camulkar was registered Mahajan of Devsthan & Gurudas belonged to Bhandari samaj was also tendered to the Committee. It is stated that Respondent No. 4 could not conduct any cross-examination in so far these facts are concerned. Affidavit in evidence of Sadanand Sahnu Pednekar dated 21/10/2008 ex-ecretary of Shri Dev Rudreshwar temple at Harvelem-Goa staes that he also served as President & Secretary of Sattari Taluka Bhandari Samaj Committee. He knew late Mahadev Baboni Naik & his son late Arjun Mahadev Naik Vazarkar, that Mahadev was founder member at the time of registration of Temple under Mazania Act and name of Mahadev figured at sr. No. 1364 in list of Mahajans, that Mahadev used to come to temple with Arjun and that family of late Arjun Naik was also known as 'Ozarkars' & often used surname 'Vazarakar or Naik Vazarkar'. Affidavit in evidence of Digambar Narayan Kauthankar dated 21/10/2008 disclosed that he knew family of Petitioner for 45 years, that he had seen Mahadev Baboni Naik Vazarakar, that said family was agriculturist with main occupation as cart driving. Affidavits in evidence of Premand Vithu Kauthankar & Shyamsunder Vasant Kauthankar, both dated 21/10/2008 also mention that Petitioner Sandeep belongs to their caste i.e. Naik Bhandari Samaj. Learned Senior Adv. Shri Desai argues that all these facts & affidavits have remained unshaken in searching cross-examination. It is pointed out that Respondent No. 4 came with specific case that Petitioner belonged to Devli (Bane) community and legal impact of this specific assertion on the controversy has been ignored by the Scrutiny Committee.
17. The learned Counsel has pointed out the cross examination of the witnesses to urge that it was conducted in a manner revealing no definite defence and that denial of caste of Petitioner by Respondent No. 4 was only for name-sake. The relationship of Petitioner with late Mahadev or Madeo Baboni Naik has been established through oral as also through 1941 sale-deed. It is urged that said land is still with the Petitioner & form No. I & XIV for year 1970 to 1972 are pointed out to show the name of Petitioner's grandfather recorded against it. Affidavit of real brother of Petitioner by name Subhash Arjun Naik Vazarkar is also pointed out to show that he named his first son as Rudresh after Shri Dev Rudreshwar as per desire of his late grandmother Parvoti Mahadev Naik Vazarkar. Said birth registered on 29/5/1982 reveals that Rudresh is born to Subhash on 24/5/1982. Sale deed dated 25/9/1992 is also relied upon to show that name of real brother of Petitioner is written as Shivdas Arjun Vazarkar @ Shivdas Arzun Naique Ozarcar at Sr. No. 13 and name of Petitioner himself is also written in identical fashion at Sr. No. 17 in it.
18. In this background, findings of Goa bench of National Commission For Backward Classes recorded after public hearing, particularly paragraph 4(ii) & (v) are relied upon to show that bullock- cart driving is accepted source of livelihood and about 80% of the population was landless & earned by manual labour. It is contended that thus 20% of the caste people own lands and hence, ownership of land or financially sound condition of Petitioner's family could not have been relevant to invalidate his caste claim. Para 10 of said findings also refer to vol. 1 of the book titled ' Hindu Temples & Deities' by Shri Rui Gomes Pereira & notes mention therein of temple of Shri Rudreshwar at Bicholeim and that Bhandari Naik community is described in it as belonging to 'Shudra Class'.
19. Adv. Deasai, the learned Sr. Adv. has heavily relied upon the judgment of learned Single Judge of this Court reported at 2003(1) All M.R. 1042 Shri Rambhau Diwakar Parkhedkar v. State of Maharashtra to show that if there is no report of vigilance cell, the exercise of verification of caste claim by the Scrutiny Committee can not be sustained. He points out that Hon. Apex Court has in : 3SCR430 Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri and Anr., in para 6 made certain observations about the onus of proof but those observations do not form its ratio and in present facts when there is no report of duly constituted vigilance cell, the law as expounded by the learned Single Judge must hold good. Very fairly (2004) 2 All M.R. 884 Mansaram S/o. Gangaram Wade v. State of Maharashtra and Ors., the subsequent Division Bench judgment is also pointed out to urge that it does not overrule the view of learned single judge and takes other view of the matter only because of subsequent enactment i.e. Act No. XXIII of 2001 i.e. Maharashtra Scheduled Castes, scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, 2000. It is pointed out that Section 8 of said Act No. XXIII of 2001 places burden upon claimant to prove his caste and hence. Division Bench has reached the other view but could not overrule the learned Single Judge. As such an enactment is not available in Goa state, the view of learned Single Judge still holds good here and has persuasive value. Hon. Apex Court has in --Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri and Anr. (supra) in terms followed its earlier judgment in case of Kumari Madhuri Patil (supra) and hence, here when the Respondent No. 4 came up with case that Petitioner belonged to Devli(Bane) caste , burden was upon him to show that Petitioner belonged to that caste and therefore did not belong to Naik Bhandari caste. The impugned order of the Scrutiny Committee is assailed on these grounds as mechanical and arbitrary.
20. By inviting attention to letter dated 26.8.2008, Advocate Dessai has stated that the Scrutiny Committee has, in turn, referred the matter to Vigilance Cell by quoting the Judgment in the case of Kumari Madhuri Patil (supra). He points out that invalidity of inquiry undertaken by the Police Inspector Porvorim was pointed out to the said P.I. himself and also to the Scrutiny Committee by raising specific objections and in cross examination, the said P.I. accepted that he had no knowledge of the Judgment in Kumari Madhuri Patil's case. In this background, reliance has been placed on the case of Prabhu S/o. Narayan Survase v. State of Maharashtra and Ors. reported at 2004(4) All MR 815 to urge that obtaining vigilance report is mandatory requirement and the burden is not completely upon the claimant. Importance of role of Vigilance Cell in the process is being pointed out with obligation of scrutiny committee in the matter by placing reliance upon the judgment in the case of Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra and Ors. reported at : 3SCR466 . The circular prescribing the procedure to be followed is also brought to our attention and it is also pointed out that the Hon'ble Apex Court has, in the case of Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri and Anr. reported at : 3SCR430 and the Division Bench of this Court in the case of Yogesh S/o. Madhavrao Kakulte v. State of Maharashtra and Anr. reported at : 2006(3)MhLj691 reiterated the importance of assistance by the Vigilance Cell and consideration of matter by the Scrutiny Committee. It is argued that none of the 36 documents filed by the petitioner have been commented upon, his witnesses, 19 in number, have not been even perused. Learned Senior Advocate fairly stated that witness No. 2 Priest Shri Vaze could have been conveniently ignored and in view of his cross examination, the petitioner is not placing any reliance upon his evidence. But, according to learned Advocate, the other witnesses specifically stated about their caste, the caste of the petitioner being the same or then about the caste of blood relatives of the petitioner. He states that when present respondent No. 4 did not examine any witness, the Scrutiny Committee was duty bound to assign some reason for totally overlooking these witnesses and their evidence. He contends that the Scrutiny Committee has found that income of the present petitioner revealed that he was from creamy layer and the Vigilance Cell report was against him. These two points eclipsed the entire further consideration of controversy by it and the issue of creamy layer was not relevant as the petitioner was not seeking admission anywhere. He states that the importance attached to cancellation of caste certificate by the Samaj is also unwarranted in view of the Circular dated 3.7.07. He contends that the Scrutiny Committee did not consider the fact that the petitioner never applied for his enrollment as Mahajan of Rudreshwar Temple ,therefore, his claim is not rejected by the temple. The Vigilance Report has been prepared without even visiting the Villages like Morlem and Ozrim and, hence, the said vigilance report is incomplete.
21. Our attention has been invited to specific assertions contained in the affidavits dated 1.8.08, 18.8.08 and 21.10.2008 which have been treated as his affidavits of examination-in-chief and through which the Petitioner has connected the documents produced on record. It is urged that there is no cross examination in relation to material facts brought on record by the petitioner and there is no cross examination about 1941 Sale Deed or then the name of grandfather Mahadeo as appearing in these documents. Only cross examination is in relation to the fact of mahajanship of Mahadev Babal Naik. He states that suggestion made to the petitioner has been denied by him and the question put by the Presiding Officer to the Petitioner again shows ignorance of the Circular dated 3.7.07. Our attention has been invited to the documents like ration card issued to cousin brother of the petitioner Mohan H. Naik, birth certificate of Babuso Mahadeo Naik in which Mahadeo Naik and Parvati Mahadeo Naik are shown as grandparents. Said Babuso and Mohan are sons of Harishchandra Naik, brother of petitioner's father. Attention is also invited to the birth certificate issued to Keshav Harischandra Naik, another son of Harishchandra where along with surname 'Naik' surname 'Vazarkar' has also been used as part of surname and names of grandparents are also mentioned, as Mahadeo Naik Vazarkar and Parvati Mahadeo Naik Vazarkar. Attention is also invited to the affidavit of Suresh Tukaram Naik, paternal cousin uncle of the petitioner who has stated that Babani Naik Vazarkar was paternal great grandfather of Sandip Vazarkar and the family has been using this surname like 'Naik' or 'Naik Vazarkar'. But he has stated that the family belongs to Gomantak Bhandari Samaj. Certificate dated 26.6.07 issued to said Suresh by the Samaj, certificate dated 5.7.07 issued to him by the Dy. Collector and S.D.O. Mapusa, Goa, as also his certificate of birth wherein name of his grandfather has been recorded as Baboni Naique, death certificate of Mahadeo Naik Vazarkar which mentioned the name of his father as Babani Vazarkar, certifying that death occurred on 9.7.1980 and registered on 8.8.1980 is also pointed out. It is contended that these documents and certificates sufficiently established the truth in the claim of the petitioner and in any case, necessitated further verification through the Vigilance Cell. Our attention has also been invited to the evidence tendered on affidavits by the Ex-Secretary, Ex-Vice President and Ex-President of Rudreshwar Temple pointing out that the petitioner is lineal descendant on record of Mahajan Mahadev Babani Naik and it is argued that no reason has been given to discard this independent material which has come on record.
22. Senior Advocate Shri Nadkarni for respondent No. 4 has contended that the Scrutiny Committee has perused the Vigilance Cell report and the documents on record. Its findings are based upon material and, therefore, in writ jurisdiction this Court cannot interfere in the matter. He points out that the caste certificate was first obtained by the petitioner without completing procedure therefor in one day only and he also obtained validity therefor from the Scrutiny Committee similarly. He contends that the very same PI whose vigilance report is being objected to now had then submitted a report in favour of the Petitioner and the Petitioner, in fact, attempted to obtain the relief that the said verification should also be held good in the re-verification exercise/matter. He contends that there never was any independent inquiry undertaken either by the Talathi or Mamlatdar and because of the influence of the Petitioner, even the Scrutiny Committee mechanically issued him the validity certificate. In this background, he contends that the learned Advocate General, after realizing the difficulties, accepted to re-verify the certificate and accordingly, the Scrutiny Committee had undertaken the work of re-verification. According to him, the validity already issued was being re-looked and hence, the parameters laid down by the Hon'ble Apex Court in Kumari Madhuri Patil (supra) were and are not relevant. He invites our attention to the findings recorded by the Scrutiny Committee to contend that the petitioner could not connect himself with Mahadeo Babal Naik, a person recorded as mahajan way back in 1928.
23. He invited our attention to initial application for grant of caste certificate moved by the petitioner to show that their caste or sub- caste in relation to which certificate was sought, was not mentioned and even the details of properties were not furnished. No details of income or wealth were given and it was mentioned that the petitioner did not belong to creamy layer. He further stated that the form itself carried a warning that if the information furnished was found to be incorrect, the certificate was liable to be cancelled and the applicant was liable to further action as provided under the law and/or Rules and still material columns were left blank. Inspite of this, Talathi issued the necessary clearance and it is pointed out that the Talathi has mentioned the occupation of the Petitioner to be service, which is contrary to the application moved. The Talathi has also certified that the Petitioner did not belong to creamy layer and did not furnish any other information to verify the place of origin of the applicant's family. It is contended that the documents verified by the Tahsildar show total non-application of mind and the entire process was shown completed within one day i.e. during office hours. On the basis of said verification, the Dy. Collector issued the caste certificate to the petitioner on 11.4.07 itself. He further contends that such certificate could not have been used by the petitioner unless and until it was approved by the Scrutiny Committee and the petitioner ought to have moved the Scrutiny Committee for said purpose at least six months before the date on which the certificate was to be used. For this purpose, reliance is being placed upon the observations of the Hon'ble Supreme Court on paragraph 13.3 in the case of Kumari Madhuri Patil and the Circular dated 20.4.2007 issued by the Goa Government. Then the facts like complaint made by respondent No. 4 to the Election Officer, Show Cause Notice issued by the Dy. Collector to the petitioner, reply and additional reply etc, submitted by the petitioner to it are all pointed out. It is urged that the petitioner approached the Scrutiny Committee only to kill the show cause notice and proceedings initiated by the Dy. Collector for cancellation of the caste certificate issued in his favour. It is stated that the petitioner never pointed out in any of his three replies his place of origin as Morlem or Rudreshwar as his family deity and never claimed migration from Morlem to Ozrim and even to Socorro. He contends that 1941 Sale deed was only placed on record to show that the Petitioner and his family were natives of Socorro itself since long. In this connection, our attention has been invited to reply dated 8.10.2007 filed by the Petitioner before the Dy. Collector on record of the Mamlatdar dated 25.7.07 to show that the Petitioner has not disclosed these material aspects in the said reply. The report of Talathi dated 6.7.2007 to the Mamlatdar about second verification is also pointed out to show the casual mode and manner in which the Talathi has conducted the inquiry and also to report of the Mamlatdar dated 25.7.2007 in which the Mamlatdar has recommended cancellation of the certificate issued to the Petitioner. It is contended that when all proceedings were going on and the Petitioner approached the Scrutiny Committee, the Petitioner did not point out the show cause notice issued to him by the Dy. Collector and even reply filed by him in the proceedings for cancellation to the Scrutiny Committee. The learned Senior Counsel contends that the Scrutiny Committee granted validity on 25.7.2007 in most casual and mechanical fashion only by observing that there were no adverse remarks against the Petitioner.
24. Advocate Shri Nadkarni states that in the meanwhile, on 22.7.07, the Petitioner corrected the name of his great grandfather from Babal to Babani in death certificate of his grandfather and when this correction was put to him, he admitted it in his cross examination. He has then invited our attention to various replies and statements made by the Petitioner to point out how there was no plea of family being originally from Morlem or then of any mahajnship of Rudreshwar Temple or migration. The said story has been for the first time evolved and brought on record in oral statement given to PI, Porvorim on 29.8.08 and though the period during which the family migrated from one place to other place was disclosed in reply, it was not given to the Vigilance Cell to avoid any verification. The concerned PI, therefore, could not verify those facts. Our attention has been invited to the fact that 3 birth certificates of children of Arjun brought on record show that Arjun was born either in 1922 or in 1932 at Socorro itself, and as per the statement of Narayan i.e. brother of Arjun, aged 80 years, the family was residing at Socorro since his birth i.e. since 1927. In these circumstances, it is contended that these documents clearly show that story of migration of family from one place to another is false. Attention has been also invited to 1941 sale deed to show that name of Mahadeo has been recorded as landlord and from Village Socorro itself with contention that if Mahadeo had arrived at Socorro in 1940-41 itself, he would not have been mentioned either as landlord or as native of Socorro and it did not support any story about migration. Affidavit of one Digamber Kauthankar is also pointed out to urge that he was claiming to know the family since last 65 years and they were residing at Socorro only. Learned Sr. Adv. has pointed out that the deponent Digamber himself was only 54 years old.
25. It is urged that the Petitioner himself sought leave from the Scrutiny Committee to lead additional evidence and even filed 3 affidavits. All the affidavits are of general nature and documents placed on record were also very general i.e. not relevant for determining the caste as such. Attention has been invited to list of documents and it is contended that those 36 documents filed along with the reply dated 1.8.08 mostly pertained to the period after verification was undertaken. Paragraph 11 of this affidavit is pressed into service to urge that for the first time before the Scrutiny Committee the place of original residence or Mahadeo being Mahajan of Lord Rudreshwar and fact of his name appearing at serial No. 1364 was pointed out . It is contended that again no details of shifting of family from one place to other place were given. In these circumstances, cross examination of petitioner has been pointed out to show how he admitted his income to be above 18.00 lakhs or 20.00 lakhs and how income certificate issued to him by the Panchayat was incorrect. It is stated that though the Petitioner relied upon people at Morlem to support his contention and also promised to place on record property documents in relation to alleged property at Ozrim, no people from Morlem were named or examined at any point of time or no documents of property at Ozrim were placed on record. It is contended that in the police statement dated 29.8.08, no reliance has been placed upon any people from Morlem or any property at Ozrim only with a view to avoid verification. It is vociferously argued that if the Petitioner was regularly visiting with his father or brother the Lord Rudreshwar Temple and it was their family deity, when question of caste cropped up the Petitioner ought to have pleaded these facts in his first reply or then in his first application for its procurement. It is contended that the explanation given by the Petitioner that as he was not possessing necessary documents, the said facts were not pleaded, cannot be accepted as several other facts were already pleaded without any documents by him. He contends that the Petitioner accepted that there was no inquiry conducted by the Talathi when he was given the caste certificate on 11.4.07. Learned Counsel contends that when the Petitioner became aware of existence of name of one Mahadeo Babani Naik in the catalogue of Mahajans, the story of migration was developed and the death certificate of Mahadeo was corrected. The learned Counsel contends that as this conduct has been proved from records and the Petitioner obtained the caste certificate though he belongs to creamy layer, this Court should not interfere and the writ petition should be dismissed. The learned Senior Advocate has, thereafter, taken us through the examination-in-chief and cross of witnesses examined in support of his case by the Petitioner to point out that these witnesses have not brought on record any relevant facts except mentioning that the Petitioner was belonging to their caste. It is contended that the Scrutiny Committee has rightly appreciated the entire controversy and invalidated the caste claim.
26. Senior Advocate Shri Nadkarni has pointed out that PI Porvorim who conducted spot inquiry at the request of Vigilance Cell was cross examined by the Petitioner and also by the complainant. The fact that said PI received the communication for carrying out the inquiry from the Vigilance Cell attached to the Scrutiny Committee has been established on record and the PI, therefore, was acting as part and parcel of the said Vigilance Cell. Very high Police Officers constituting Vigilance Cell are not supposed to personally verify such details and verification through PI has been duly considered by the Vigilance Cell while submitting the report. He also invited attention to the deposition of Chartered Accountant to point out how the Chartered Accountant has given evasive answers while disclosing annual income of the petitioner for past three relevant years i.e. 2004-05, 2005-06, and 2006-07. He attempts to point out that the petitioner in his cross examination accepted that his income from the business was more than Rs. 15.00 lakhs and still the Chartered Accountant has tried to bring on record, position to the contrary. He invites attention to certificate procured by the petitioner from the Panchayat showing that his joint income was Rs. 3,30,000/-for 3 years. He argues that the said certificate is also demonstrated to be incorrect. The Petitioner belongs to creamy layer and, therefore, he could not have used the OBC certificate for securing any benefits. The Scrutiny Committee has properly appreciated this position on record.
27. He has also attempted to point out that arguments of the Petitioner that certificate dated 11.4.2007 issued by the Samaj could not have been cancelled except by resolution of General Body, is incorrect. He contends that the Petitioner has not brought on record the fact of his enrollment at all and hence, the provisions of bye-law No. 44 which deals with cancellation of membership or expulsion of member are not relevant here. He has invited attention to bye-law No. 4 to point out how membership can be acquired. He has contended that if really great grandfather of the Petitioner was mahajan of Rudreshwar Temple, it was very easy for the Petitioner to approach the temple authorities and procure the certificate in support of the said fact. He invited attention to provisions of Article 4 of the Bye-laws of said Devasthan to show that membership is hereditary, untransferable and unprescriptible. He has invited attention to the provisions of Devasthan Regulation, particularly, Article 23 dealing with the powers of body of members, Articles 17 and 19. Article 23 prescribes maintenance of catalogue of members (mazanias) i.e. mahajans, which is required to be revised every year by the managing committee. Article 17 requires the body of mahajans to have the bye-laws approved from the Government and Article 19 permits deliberation on any alterations or reform of their byelaws already approved by Government. According to him, in view of these provisions, body of members/mahajans of Rudreshwar Temple could have also enrolled the Petitioner as mahajan if they were satisfied about his caste claim & relationship. According to him, such an effort by the Petitioner would have shown his bonafides. He has invited attention to procedure as prescribed by the Government of Goa vide its Circular dated 26.4.2001 and contended that the Scrutiny Committee has followed the said procedure. He has invited attention to the vigilance report dated 18.9.08 and also the communication dated 7.9.07 to show that earlier report of verification dated 11.7.07 was also on the basis of report submitted by the PI, Porvorim. He points out that in the present report, inquiry into relationship has been made and in his statement recorded by the Police Inspector, the Petitioner did not make any disclosure about exact period of stay at the alleged places from which his ancestors migrated or did not even point out possibility of its verification. He contends that the objections to police vigilance report dated 18.9.08 is only after finding it to be adverse and in fact the earlier verification report by same officer was expressly relied upon by the Petitioner in earlier round of litigation without making any such grudge.
28. He has invited attention to written arguments filed before the Scrutiny Committee to show how the Petitioner has mischievously mentioned number of documents to be 12, but only 10 documents have been relied upon. He contends that out of 10 documents, relevant one on record has been appreciated by the Scrutiny Committee. To substantiate his contention that the Petitioner belongs to creamy layer, he could not have been given such certificate and he could not have used it as reserved category candidate to contest election, he has relied upon a Judgment of the Hon'ble Apex Court in the case of Indra Sawhney v. Union of India reported at : AIR2000SC498 , and has taken us extensively through various paragraphs to point out importance of concept of creamy layer and how the efforts made by Kerala Government to do away with it, have been dealt with in it. He contends that if the Petitioner is permitted to contest election as OBC candidate, it would amount to treating unequals equally. He has also pointed out how similar attempt made by the Central Government has been dealt with by the Constitutional Bench of the Hon'ble Apex Court in the case of Ashoka Kumar Thakur v. Union of India and Ors. reported at : (2008)6SCC1 and how creamy layer has been excluded from OBC category. In this connection, he has invited attention to Notifications dated 4.10.95, 13.10.06, 14.10.08 and 21.3.09 relevant for determination of creamy layer. He points out that the Government has prescribed income test and at the relevant time it was Rs. 2,50,000/-. As income of the petitioner was in excess of Rs. 2,50,000/-, he could not have been treated as OBC at all.
29. The learned Counsel has then pointed out how various Judgments relied upon by the Petitioner are not relevant. He has contended that the Judgments in which Vigilance Report is held to be essential were mostly dealing with cases of scheduled tribes where no documents were available and no inquiry into anthropology or ethnological traits was undertaken. He contends that the Hon'ble Apex Court also has in para 13.5 of its Judgment in the case of Kumari Madhuri Patil (supra) prescribed special procedure only for tribes because tribes do not possess any documentary evidence in relation to their caste. He relied upon Judgment of Division Bench of this Court in the case of Mansaram S/o. Gangaram Wade v. State of Maharashtra and Ors. reported at 2004(2) All MR 884, where Division Bench of this Court considers the situation prior to constitution of Vigilance Cell to contend that case of present Petitioner is more or less similar to it. He contends that in the present facts, Scrutiny Committee has not relied upon the report of the Vigilance Cell, but has conducted independent inquiry and thereafter, recorded its findings. According to him, the Petitioner ought to have given correct facts in his initial application for grant of caste certificate and in any case, ought to have disclosed the necessary particulars for verification /investigation at the earliest to the Scrutiny Committee or the PI, Porvorim. The evidence on record clearly shows that the Petitioner was acting malafide and was improving his case from time to time. The finding of the Scrutiny Committee in the present circumstances, cannot be said to be either erroneous or perverse. It is his contention that the Hon'ble Apex Court has not held that affinity test is relevant for OBC candidates. He has further stated that as per the Judgment of the Hon'ble Apex Court in the case of Gayatrilaxmi Bapurao Nagpure (supra), Scrutiny Committee is expected to verify the material produced by the Petitioner and it is not required to find out material in his favour or against him. He has also attempted to distinguish the other judgments cited by the Petitioner to urge that the burden to prove his caste was upon the Petitioner and there is no question of either respondent No. 4 or then the Scrutiny Committee making efforts to show that he does not belong to Bhandari Naik Community. He has contended that reliance upon the provisions of Maharashtra Act No. 23 of 2001 to contend that by said enactment burden has been placed upon the claimant is incorrect because the law never places negative burden. According to him, the Petitioner has to prove his caste and nobody is expected by law to establish negative. He contends that this position is apparent from the Judgment of the Hon'ble Apex Court in case of Kumari Madhuri Patil and also para 6 of its Judgment in the case of Director of Tribal Welfare, Govt. of A.P. (supra). He has argued that in the present facts, it is not the grievance of the Petitioner that the Scrutiny Committee or Vigilance Cell did not give him appropriate opportunity. The Petitioner has brought on record entire material as per his desire and after considering that material, the Scrutiny Committee has delivered its verdict. He relies upon a Division Bench Judgment of this Court (unreported) dated 17.3.2008, in the case of Shri Conceicao Dias v. State of Goa and Ors. in Writ Petition No. 9/2008 to show how the matter needs to be viewed and also to urge that unverified caste certificate issued to any relation of Petitioner is not relevant at all at this stage. He has relied upon Judgment of the Hon'ble Apex Court in the case of State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh etc. reported at : 1SCR176 , particularly paragraph 28 to urge that the Petitioner is expecting this Court to act as an appellate authority and this Court cannot re- appreciate the evidence and record any finding in that respect. He, therefore, states that in the present circumstances, when the Scrutiny Committee has reached a particular view which is neither erroneous nor perverse and there is no procedural irregularity or illegality, the writ petition deserves to be dismissed.
30. In reply to the arguments, Senior Advocate Shri Dessai for the petitioner has contended that creamy layer concept, as evolved, is only in relation to appointment to any post in public employment or for admission to educational institution and is not germane for the purposes of elective office. He has invited our attention to the provisions of Article 243D(6) and Article 243F(1)(a) of the Constitution of India to point out as to how the constitution envisages reservation for Other Backward Classes by the State Governments and how separate law of elections for that purpose has been evolved. The provisions of Section 7 of the Goa Panchayat Raj Act have been pointed out to show that its Sub-section (5) again contemplates reservation for various categories. The notification for reserving the seat in Ward No. 8 published on 5.4.2007 is pointed out and then provisions of Section 16 of the Goa Panchayat Raj Act are shown along with its Sections 20 and 21 to contend that elected candidate belonging to creamy layer is not a ground stipulated therein for declaring the elections to be vitiated. Form of nomination prescribed under the Goa Panchayat and Zilla Panchayats Rules, 1996 is shown to the Court to show that it only contemplates submission of caste certificate of the competent authority i.e. by the Dy. Collector and S.D.O. in terms of paragraph 13.3(i) of the Judgment of the Hon'ble Apex Court in the case of Kumari Madhuri Patil (supra) and the procedure prescribed by Goa Government in that respect. It is contended that Respondent No. 4 has filed election petition under Section 16 and, therefore, onus is upon him to show that the petitioner belongs to Devli Bane community and does not belong to Bhandari Naik caste. Our attention has been invited to copy of statements of residents of Village Socorro recorded by the Mamlatdar of Bardez in support complaint of Respondent No. 4, in which though the said residents have stated that the Petitioner does not belong to Bhandari Naik community, they have stated that he migrated from Ozrim to Socorro. The learned Senior Advocate has contended that thus, there is material on record to show substance and truth in story of migration as pleaded by the Petitioner, and Vigilance Cell therefore ought to have verified it.
31. In this background, our attention has been invited to first judgment of the Hon'ble Apex Court in case of Indra Sawhney and Ors. v. Union of India and Ors. reported at 1992 Supp.(3) SCC 217 of the report & question No. 3 to urge that the Hon'ble Apex Court has considered the aspect of public employment and admission to educational institutions only. Paragraphs 792 and 793 are again pressed into service to buttress the same contention with submission that because of higher income and improvement in standard of living, the person belonging to OBC has been excluded from it as he belongs to so called creamy layer. Judgment in the case of Indra Sawhney and Ors. v. Union of India and Ors. reported at reported at : AIR2000SC498 heavily relied upon by Respondent No. 4 is sought to be explained by arguing that exclusion of OBC candidate because he belongs to creamy layer, is for limited purposes and not for elections. Judgment in the case of Ashoka Kumar Thakur v. Union of India and Ors. reported at : (2008)6SCC1 is also stated to be delivered in this backdrop only.
32. The charge of falsification of accounts by the Petitioner is stated to be misconceived with argument that when creamy layer concept itself is not applicable, there was no reason for the Petitioner to tamper with his income documents. Affidavit of the Petitioner is shown to state that he disclosed his income as Rs. 5,88,000/-for 3 years, but then the Secretary of Village Panchayat issued certificate that it was Rs. 3,30,000/-for 3 years, as the said Secretary was under impression that the Petitioner was trying to obtain some employment. Attention is also invited to cross examination of the Chartered Account Shri Dalvi to show that he has deposed about total turn over or then about gross income and not about net income.
33. It is contended that argument about Petitioner obtaining certificate from Rudreshwar Temple is misconceived, because the said temple has no such authority in law and the Petitioner never opted to apply for its membership or for his enrollment as mahajan. It is contended that Article 23 of the Devasthan Regulation is, therefore, not relevant and merely because the Petitioner is not a member or not mahajan, he does not cease to be Bhandari Naik. Similar arguments are advanced in relation to alleged manipulation with regard to Mahadeo Babani Naik to point out provisions of Registration of Births and Deaths Act, 1969, particularly Sections 7 and 10. It is alleged that an employee of a Panchayat like its Secretary can be appointed as Registrar and said Registrar has power to correct erroneous entries. Learned Senior Advocate has contended that S. S. Pednekar examined as witness was resident of Tulsi Mala Parye, Sattari, Goa which is adjacent to Morlem and he was 54 years old. He has fairly given idea about family of the Petitioner and he has deposed about relationship of Mahadeo Babani Naik and the Petitioner and also about stay of Mahadeo at Morlem. There is no reason to disbelieve the said person. It is contended that as the Petitioner was not aware of the registration or enrollment of Mahadeo as Mahajan and he did not have necessary documents, the said story could not be pleaded immediately before the Scrutiny Committee. After this Court remanded the matter back for fresh verification in Writ Petition No. 111/2008, necessary documents along with necessary pleading were filed before the Scrutiny Committee. It is stated that the Petitioner, in his reply to Scrutiny Committee, supplied necessary documents and those documents from which story emerges, have not been verified by the Vigilance Cell at all. It is reiterated that this fresh inquiry is regulated by the Judgment of Hon'ble Apex Court in case of Kumari Madhuri Patil (supra). The contention of Respondent No. 4 that parameters laid down in Kumari Madhuri Patil's case are not applicable, is stated to be misconceived. Learned Senior Advocate Shri Dessai has sought to distinguish unreported Judgment in Writ Petition No. 96/98 delivered by Division Bench of this High Court by contending that there claimant did not challenge vigilance report at all and also conceded to this position before this Court. Our attention has been invited to Sections 101 to 104 of the Evidence Act to contend that burden was upon Respondent No. 4 to show that the Petitioner belonged to Develi Banne community. It is contended that as Respondent No. 4 did not lead any evidence, evidence adduced by the petitioner could not have been disbelieved.
34. In his sur-reply, Senior Advocate Shri Nadkarni has stated that coming into force 93rd Constitutional Amendment, after first Judgment of Hon'ble Apex Court in Indra Sawhney and Ors. v. Union of India and Ors. (supra), has got no bearing on question to be considered and logic given in both the Judgments in Indra Sawhney and Ors. v. Union of India and Ors. (supra), by Hon'ble Apex Court has to be extended even to Article 243(6), as said provision is pari materia with Article 16(4). It is argued that the norms which violate Article 14 for the purposes of employment and admission, must also be held invalid for the purposes of elections. To show that such analogy under Articles 15(4) and 16(4) has been applied by Hon'ble Apex Court also to elections under Article 332, the learned Counsel has placed reliance upon Judgment of Hon'ble Apex Court in the case of Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Ors. reported at : AIR2005SC800 and in the case of Meera Kanwaria v. Sunita and Ors. reported at : AIR2006SC597 . In this background, our attention has been invited to Judgment of Hon'ble Apex Court in the case of Ashoka Kumar Thakur v. Union of India and Ors. (supra) to show that Hon'ble Apex Court has found it necessary to maintain creamy layer in so far as reservations to OBC are concerned.
35. It is pointed out that witness S.S. Pednekar produced by the Petitioner before the scrutiny committee was not resident of Morlem and whether his residence was in the vicinity of Morlem or otherwise, is a question of fact and as there is no finding about it on record, contention of Advocate Dessai that said witness had personal knowledge about residence of grandfather of the Petitioner cannot be accepted. It is contended that this witness has deposed things which the Petitioner himself has not affirmed. Lastly, a Judgment of Division Bench of this Court in the case of Mansaram S/o. Gangaram Wade v. State of Maharashtra and Ors. reported at 2004(2) All MR 884, particularly head note B and paragraph 8 are pointed out to state that unverified certificate issued by the Dy. Collector and S.D.O. cannot be relied upon by either Scrutiny Committee or by any Court.
36. Senior Adv. Shri S.G. Desai has relied on:
: AIR1995SC94 , Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors.
Division Bench in judgment reported at 2004(4) All MR 815 --Prabhu s/o. Narayan Survase v. State of Maharashtra and Ors.
Hon'ble Apex Court in : 3SCR466 Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra and Ors.,
Division Bench in judgment reported at 2006(3) Mh.L.J. 691 - in the case of Yogesh S/o. Madhavrao Kakulte v. State of Maharashtra and Anr.
Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri and Anr. reported at : 3SCR430 . Learned Single Judge in 2003(1) All M.R. 1042 Shri Rambhau Diwakar Parkhedkar v. State of Maharashtra.
Judgment of the Hon'ble Apex Court in case of Indra Sawhney and Ors., v. Union of India and Ors. reported at 1992 Supp.(3) SCC 217, of the report & question No. 3
Senior Adv. Shri ANS Nadkarni has relied on :--
Indra Sawhney v. Union of India., reported at : AIR2000SC498 , Ashoka Kumar Thakur : (2008)6SCC1 .
Mansaram s/o. Gangaram Wade v. State of Maharashtra and Ors. reported at 2004(2) All MR 884.
Division Bench Judgment of this Court (unreported) dated 17.3.2008, in the case of Shri Conceicao Dias v. State of Goa and Ors., in Writ Petition No. 9/2008.
Judgment of the Hon'ble Apex Court in the case of State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh etc. reported at : 1SCR176 , particularly paragraph 28.
Judgments of Hon'ble Apex Court in the case of Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Ors. reported at : AIR2005SC800 and in the case of Meera Kanwaria v. Sunita and Ors. reported at : AIR2006SC597 .
37. The burden of proof and its shifting between Petitioner & Respondent No. 4 may not be very relevant because the complaint or objection of Respondent No. 4 is not the reason for caste verification. Even in absence of such objections, the said certificate was bound to be verified in accordance with the norms laid down in AIR 1995 SC 94 - Ku. Madhuri Patil v. Addl. Commissioner, Tribal Development. Only question is whether Scrutiny Committee has to view the caste-claim as untrue and insist for proof beyond doubt or then has to consider preponderance of probabilities. What role vigilance Cell has to play in this process of verification as research officer is not attached to it when claim is as OBC candidate is also a point for consideration. What has to be the role of political rival like Respondent No. 4 & has he to make only roving attempts or then he has to bring on record some positive material inconsistent with the caste claim of Petitioner. Here Respondent No. 4 came with specific stand that Petitioner belonged to Devli (Bane) caste and P.I. Porvorim also allegedly reported that neighbour of Petitioner by name Parshuram Shirodkar stated to him that Petitioner was Devli(Bane) by caste & did not belong to Naik Bhandari caste to which Parshuram belonged. Though said Parshuram filed affidavit denying any such personal inquiry with him, he was never examined by Petitioner before the Scrutiny Committee. But then alleged statement made by him to PI Porvorim itself has not been produced on record and hence, need for tendering him in witness box did not arise.
38. Question is of availability of vigilance cell report on record & if not, whether its absence is fatal in this case. Judgment of the learned Single Judge in 2003(1) All M.R. 1042 Shri Rambhau Diwakar Parkhedkar v. State of Maharashtra relied upon by the Petitioner considers the case of rejection of claim as belonging to Halba scheduled tribe. The anthropological & ethnological tests assumed importance there as some overlapping between Halba & Halba Koshtis i.e. weavers was noticed. In this background, following observations are important:
13. Mr. Patil, learned Counsel further relied on the paragraph No. 28 of the Judgment of the learned Single Judge of this Court (Mohite,J.), delivered in Ku. Chhaya Binekar v. State of Maharashtra and Ors., in Writ Petition No. 1683/2000 (reported in 2002 (10) LJSOFT 100), which reads as under:
28. To further elaborate the point, it will not be open to any person to contend that the ultimate order of the Caste Scrutiny Committee is vitiated merely because the investigation has not been carried out strictly in accordance with the relevant wording given in direction No. 5 as reproduced hereinabove. If there is any lacuna in the vigilance cell report or in the documents enclosed therewith, it is always open to the concerned person to bring this to the notice of the Scrutiny Committee in the enquiry contemplated under the direction No. 6. The aforesaid wordings of the Supreme Court pertaining to the manner in which the investigation is required to be carried out cannot be read as if they are a part of a statute.14. I am of view that the aforesaid observations cannot be considered as an authority for the proposition that the Police Vigilance Cell can ignore its duty of making an enquiry into the peculiar anthropological and ethnological traits, deities, rituals, etc., as observed by the Apex Court. I understand that the aforesaid observations of brother Mohite,J., merely allow the investigating authority 'free play in the joints' and allows latitude on the question as to how to conduct the investigation. It however does not allow latitude as to what is required to be investigated. In the category of what is required to be investigated would fall as to the anthropological and ethnological traits, deities, rituals, customs, mode of marriage, death ceremonies, method of burial of the persons/family and existence of documents evidencing the caste of the concerned person. Indeed, in para 5 of the Judgment of the Supreme Court, the Apex Court dealt with 'how' an investigation should be conducted as well as 'what' should be investigated. The latitude allowed in the Judgment of brother Mohite, J. is only in respect of the former and not the latter. The Judgment in Ku. Chaya Namdeorao Binekar v. State of Maharashtra and Ors., rendered by brother Mohite, J. in Writ Petition No. 1683/2000 is, therefore, of no help when an enquiry conducted by Police Vigilance Cell is devoid of essential and basic investigation necessary for procuring necessary material for verifying a person's caste.
15. In the circumstances of the case, I am of view that the impugned order of the Committee deserves to be set aside and it is accordingly set aside and the matter is remanded to the Respondent-Committee for fresh decision in accordance with law, by following the procedure, prescribed by the Apex Court in Guideline No. 5 in Madhuri Patil's case. In particular, the Respondent-Committee shall direct its Police Vigilance Cell to make an enquiry regarding those aspects, referred to in Guidelines No. 5, as aforesaid and ensure that the report of the Police Vigilance Cell covers those aspects, viz. anthropological and ethnological traits etc. The Committee shall evaluate the caste claim thereafter. Besides, having regard to the observations of Russel and Hiralal, in the book referred to above, the Committee shall consider the tenability of the petitioner's claim that he is Halba, eventhough the some school certificates of petitioners' relatives show that they belong to Koshti. This observation is made particularly, since there seems great authority for the proposition that the occupation of weaving, i.e. Koshti does not automatically negate the claim that a person is 'Halba'. After considering the anthropological and ethnological traits etc. and the report to that effect, the Committee would be certainly free to arrive at its own decision as to the validity of the petitioner's caste claim.
Thus conclusion reached is the vigilance cell has to abide by the directions of Hon. Apex Court as to 'how' & 'what' to inquire. It is not possible to restrict the sweep of these observations only to Scheduled Tribe candidates & to exclude OBC as urged by Adv. Nadkarni in view of express language used therein.
39. In Kumari Madhuri Patil and anr. v. Addl. Commissioner, Tribal Development and Ors., (supra) paragraph 13 in SCC or 12 in AIR is the important para:
12. The admission wrongly gained or a 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 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 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 Commissioner 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 community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate.
3. 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.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any office higher in rank of the Director of the concerned department, (II) the Director, Social Welfare / Tribal Welfare / Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
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. 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 proforma, 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 and dead bodies etc. by the concerned castes or tribes or tribal communities 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 acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation / reply shall convene the Committee and the Joint / Addl. 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.
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-today 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 provisional, 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. 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 the 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 ac-knowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission / appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post.
40. In Yogesh Madhavrao Kakulte v. State of Maharashtra reported at 2006(3) Mh.L.J. 691, cited by the Petitioner , the Division Bench of this Court observes:
5. The question in respect of mode of deciding the tribe claim in such cases, has been considered by the Division Bench of this Court, in the matter of Prabhu Narayan Survase v. State of Maharashtra reported in 2004 (11) LJSOFT 110 : 2004 (4) All MR 815. In Clause (f) of Para 11 of the Report, the Court observed thus:
(f) In the absence of documentary evidence, the duty of the Committee will be to permit the candidate to lead evidence of tribal traits and characteristics, by answering the questionnaire prepared in respect of his tribe and also allow any evidence on affidavit to be led on which the candidate can be questioned. That material including in cases where there are documents should be made available to the Vigilance Officer who will verify the same by following the procedure laid down in judgment of the Apex Court referred to earlier to find out the authenticity or genuineness of the claim.' 6. Similar view is taken by this Court in Writ Petition No. 4560/2004 in the matter of Madhav Laxmanrao Gaddapod v. State of Maharashtra and Ors. decided by this Court on 5th August, 2004 and recent decision of this Bench in Writ Petition No. 2163/2004 in the matter of Vaijnath Zunjkar v. Scrutiny Committee and Anr. Principles applicable to such cases is now well-settled. In such cases affinity test assumes importance and the tribe claim has to be decided on preponderance of probabilities based on the material before the Committee.
7. Learned Counsel for the petitioner has referred to the decision of the Committee and pointed out that the Committee has rejected tribe claim of the petitioner mainly on the ground that he could not produce documents prior to 1950. Only passing reference is made to the material in respect of affinity test and ethnic linkage with 'Mahadeo Koli' (ST) thereby showing that these factors were not seriously taken into consideration. The basis of the conclusions reached by the Committee can be seen from the following observations found in the order: 'On going through the statements recorded by the Vigilance Officer, the Committee observed that the applicant and his family have not even basic knowledge of traits, characteristics, customs and culture etc. of 'Mahadeo Koli' Scheduled Tribe community.'
The applicant and his father did not furnish any documentary evidence prior to 1950 to establish applicant's tribe claim. The vigilance officer and even the committee tried to get the record, but the applicant failed to do so.
8. From above observation of the Committee, it can be seen that the tribe claim of the petitioner is mainly rejected on the ground that the documents produced were of recent origin. It can also be seen that the reference to the affinity test is very casual and pedantic. The material placed before the Committee is not seriously considered.
9. Learned Counsel for respondent No. 2 Committee Shri M.S. Deshmukh, has submitted that the procedure laid down by Apex Court in the case of Madhuri Patil, : AIR1995SC94 was followed, inasmuch as the report of vigilance cell and the enquiry in respect of the affinity test. was taken into consideration b, the Committee before arriving at the. final decision. However, reasons given in the order do not reflect serious consideration of the Vigilance report. Therefore, the original record was called for and scrutinized. The petitioner and his father have duly filled in the questionnaire provided to them by the Committee. In order to ascertain whether they do have knowledge of traits and characteristics, customs and usages of 'Mahadeo Koli' Scheduled Tribe, learned Counsel for respondent No. 2 has provided us the questionnaire with model answers. On comparing the answers given by the petitioner with the model answers, it can be seen that the petitioner has given almost all correct answers, in respect of traits and characteristics of 'Mahadeo Koli', Scheduled Tribe. In this view of the matter, the contention of the learned Counsel for respondent No. 2 that this material was properly considered by the Committee before rejection of the tribe claim of the petitioner cannot be sustained. On the contrary, it is apparent that the Committee has adopted pedantic approach and was influenced by the fact that documents were of recent origin.
10. In the present case, it can be seen that the Committee has fell into grave error by rejecting the tribe claim of the petitioner merely on the ground that the documents produced by him were of recent origin and by not properly appreciating the material in respect of the affinity test and ethnic linkage of the petitioner with the concerned Tribe. In cases where the decision of the Committee suffers from the vice of non-application of mind, the decision of the Committee has to be interfered with. In this behalf, reference can be made to the decision of Apex Court in the matter of Gayatrilaxmi Nagpure v. State of Maharashtra and Ors. reported in : 3SCR466 . In similar fact-situation, after referring to the principles laid down in Ku. Madhuri Patil's case (supra), the Apex Court observed in para No. 17 as under:
17. Applying the above test to the facts of the present case, we are satisfied that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to an important document 'Sl. No. 9' which led the Committee to ultimately record a finding against the appellant. By a wrongful denial of the caste certificate, the genuine candidate, he/she will be deprived of the privileges conferred upon him/her by the Constitution. Therefore, greater care must be taken before granting or rejecting any claim for caste certificate.11. In the present case also, it can be seen that the petitioner has produced documents substantiating his caste claim. Though the documents are of the recent origin, the petitioner has proved his affinity and ethnic linkage with Mahadeo Koli, Tribe, by correctly giving information regarding peculiar traits, characteristics, customs, usages etc. of his tribe. Therefore, in the peculiar circumstances of this case where all the near blood relatives of the petitioner are illiterate, the Committee ought to have given due weightage to the documents produced by him and after considering the probative value of the documents produced and the fact that petitioner has established his affinity to and ethnic linkage with 'Mahadeo Koli' Scheduled Tribe, the Committee ought to have validated the tribe claim of the petitioner. Since the Committee has utterly failed to give due weightage to the material on record, decision of the Committee cannot be upheld.
41. Petitioner also relied upon 2004 (4) ALL.M.R. 815 - Prabhu Narayan Survase v. State of Maharashtra. There the claim of petitioner as belonging to Koli Mahadeo scheduled tribe was negated as documents produced by him were subsequent to the entry in the school record of his father and he could not prove affinity or ethnic linkage. Hon'ble Division Bench of this Court found at the end of para 5 that anthropological moorings & ethnological kinship gets genetically ingrained in blood & no one would shake off from past when he is conscious of its need to seek the status of Scheduled Caste or Tribe. It is also mentioned that correct representation of these aspects in proforma by the claimant lend credence and enable proper consideration of his claim. In para 6 observations of Hon'ble Apex Court in Gayatrilaxmi Bapurao Nagpure & Kumari Madhuri Patil (both-supra) are taken note of with conclusion that though the burden lies heavily on the applicant to seek such a certificate, that does not mean that the authorities have no role to play in finding out the correctness or otherwise. The concerned authority has to assist the Committee in reaching the correct conclusion. In para 10(3) report of Vigilance Officer is held to be mandatory and as it forms basis, it must include information about area or village from which the candidate hails. This is found to be more important in case of scheduled tribes as tribals are normally found in specified areas. Scrutiny Committee has to consider anthropological factors and documents can not be rejected as of recent origin but burden is cast on authority to find out their correctness or otherwise. In para 10, the Division Bench has held that Scrutiny Committee can reject the document only if Government, Vigilance Officer or Research Officer proves it to be doubtful or its correctness or genuineness can be disbelieved on the material before it. It also observed that as Scrutiny Committee is the only fact finding authority, it has to take great care, in absence of any provision for appeal, to consider & appreciate all the evidence , documentary or by way of affidavit or oral.
42. Mansaram s/o. Gangaram Wade v. State of Maharashtra and Ors., reported at 2004(2) All MR 884 is the Division Bench of this Court relied on by Respondent No. 4. Facts there show that the grievance was that Scrutiny Committee decided caste claim to be invalid without referring the matter to vigilance cell. The judgment in case of Rambhau Parkhedkar (supra) was relied upon with further contention that State Government did not prove that the caste of petitioner was not Koli Mahadeo. Vigilance Cell was constituted by the State of Maharashtra on 15/3/1996 while Committee rejected his claim on 16/2/1996. Therefore the above grievance was found misconceived and about burden of proof the judgement of Hon'ble Apex Court in Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri (supra) has been quoted. Division Bench concluded that burden was always on petitioner and it never shifts on Government or authorities and a negative fact cannot be proved. Division Bench also noticed that sociocultural traits and characteristics were also not proved in the matter. In para 10 other judgment of learned Single Judge in case of Chhaya Binekar ( supra) and in para 11 distinguishing judgment of other learned judge in Rambhau Parkhedkar (supra) are quoted. However, Division Bench found that both these judgments consider situation in which vigilance cell was available and claim was actually referred to it. It concluded that non-constitution of vigilance cell by Government was not fatal. Division Bench also noted that in judgment in Madhuri Patil, the Hon'ble Apex Court after prescribing the procedure did not indicate that breach thereof would result in vitiating the action of Scrutiny Committee. This Division Bench judgment shows that view has been expressed after reaching a finding that petitioner could not bring on record any evidence of sociocultural traits and characteristics. Though it could have but it did not state that law as expounded in Rambhau Parkhedkar was not correct. According to us, no case of possibility of further investigation through vigilance cell or of prejudice was made out before this Division Bench and after appreciation of entire material it holds that absence of vigilance cell report was not fatal. This judgment therefore does not declare that defects in vigilance cell report are inconsequential. On the contrary as already stated obtaining of the said report is found to be mandatory. It also follows that effect of the defective report will have to be judged in facts & circumstances of each case.
43. View about burden of proof in Mansaram s/o. Gangaram Wade v. State of Maharashtra and ors (supra) is urged to be due to Maharashtra Act No. 23 of 2001 and Advocate Dessai has contended that neither this judgment nor judgment of Hon'ble Apex Court in Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri (supra) affect the law settled by Kumari Madhuri Patil. This attempt cannot succeed as in para 11, the Division Bench has independently relied only on judgment of Hon'ble Apex Court in Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri (supra) and expressed itself on burden of proof or its shifting. The stringent procedure prescribed by Maharahtra Act No. 23 of 2001 is not the reason therefor at all. Learned Senior Advocate has also argued that burden of proof was not the issue in Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri (supra) and said judgment cannot be construed as laying down any law contrary to Madhuri Patil. We find that question of burden of proof was the basic question in Laveti Giri & Hon. Apex Court held:
6. The learned Single Judge has pointed out that in Writ Petition No. 9071/82 filed by the sister of the respondent, the father of the respondent and his sister were called upon to produce the social status certificate from the native Tehsildar or the Revenue Divisional Officer but they failed to produce the same. It was also noted that Vasudeva Rao brother of Hanumantha Rao has a son by name Ravi Kumar. He also claimed social status as a Konda Kapu for admission into M.B.B.S. Course. His Writ Petition No. 6637/79 was disposed of on November 3, 1979 finding that L. Ravi Kumar's claim for social status as Konda Kapu was doubted. The matter was referred to the Director wherein it was held that Ravi Kumar was not Konda Kapu. We agree with the learned Counsel for the appellant that the High Court adopted a traditional approach of placing burden of proof of social status founded on the entries in Government record etc. and called upon the State to rebut it on the touch-stone of Evidence Act. We are unable to appreciate the view taken by the Division Bench. Burden of proof of social status is always on the person who propounds it to seek constitutional socio-economic advantages. It is no part of the duty of the State to disprove or otherwise. The criteria to obtain caste certificate from Nativit Tahsildar/Mandal Revenue Officer / Revenue Divisional Officer is relevant for the reason that Scheduled Tribes generally live in forest areas, mountainous regions and specified; pockets and will be known to local officers or easily accessible for verification. The respondent is not as innocent as the Division Bench appears to have proceeded. It is seen that the father of the respondent deliberately abstained to appear before the Director. The social status certificate to the daughter was required to be produced from the Tahsildar of native jurisdiction but failed. Though he lived in Malakpet within the jurisdiction of Musheerabad Tahsildar, he produced the certificate from Tehsildar, Vallabhangar in Ranga Reddy District who had no jurisdiction to issue it. Yet he had chosen to obtain from him and the officer was a willing and accommodating one to issue false certificate. When the Principal doubted its correctness and referred the matter to the Director of Tribal Welfare, the father admittedly did not appear to establish the social status. Though respondent, minor appeared before the Director, his statement cannot be used as evidence. His father is a Government servant. He knows the consequences and so he deliberately absented from being present before Director. Instead he chose to send his son with records. The Director considered the record and concluded that the respondent is not a Scheduled Tribe but he is a 'Kapu' by caste as evidenced by the school certificate of his father declared to be a Kapu. It bears evidentiary value and relevant material evidence. The subsequent record manufactured by his father and his continuance in service on that basis, even if it is accepted by the Department, is not conclusive and cannot be simplicity relied as gospel truth. The totamic characertistic are required to be satisfied as noted in detail in the Annexure I of the G. O. referred herein before. They had not satisfied the Director by furnishing those characteristic for verification and to take a decision thereon. The Division Bench had totally omitted to consider all these aspects and characterised the finding of the Director to be based on conjectures and surmises. It is an accepted position that the Director, Tribal Department established a research wing and made scientific study of the endemic characteristic, cultural moorings, habits, their modes of marriages custom etc. of different particular tribal community. The questionnaire was prepared as per the Annexure in the G. O. obviously, Knowing that he cannot satisfy the required features, the father of respondent deliberately abstained to appear before the Director, Tribal Welfare. Instead he got filled the writ petition in the High Court put the burden of proof on the State that the Court relieved the father of proving the status of his son's claim to be not a Scheduled Tribe. This Court while considering the similar claims and school register of the father of Madhuri and Saritha in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development : AIR1995SC94 , held that the entry in the school certificate of the caste of the father bears relevance and would prove to be false claim as Scheduled Tribe. This Court has laid guidelines how the matter required to be dealt with and stated in paragraph 13 (of SCC) : ((Para 12 of AIR) thereof :It is important to note that the Hon'ble Judges who decided Laveti Giri had themselves decided Kumari Madhuri Patil. This judgment again points out importance of socio-cultural traits and findings on it. The Scrutiny Committee therefore has to apply its mind to all aspects and it cannot ignore the otherwise relevant material in this respect. However, the stand of the Respondents that burden of proof lay upon Petitioner deserves to be accepted.
44. Perusal of the report submitted by Sr. Superintendent of Police, Vigilance Officer, Panaji-Goa as report of vigilance Cell shows that it is based upon the statements recorded by PI Porvorim, Shri Gad. Said PI in his cross-examination accepted that he was not aware of Madhuri Patil's judgment or the basis on which inquiry was to be done. In other words he was not aware of 'how' & 'what' as stated in Shri Rambhau Diwakar Parkhedkar v. State of Maharashtra (supra) letter dated 26/8/2008 sent by Scrutiny Committee mentions that after hearing the matter, it referred investigation of caste certificate of Petitioner to Vigilance Cell as per the Apex Court's judgment, particularly paragraph 13. Report mentions that inquiries were conducted through Superintendent of Police, North and PI Porvorim. Said authority then briefly states the gist of statement of Petitioner Sandeep as recorded by the PI , statement of Respondent No. 4 Rajesh. Oral statement of the Petitioner is in consonance with his plea. Rajesh stated that Mahadeo recorded as Mahajan was some other person and not the grandfather of Petitioner. His oral statement dated 29/08/2008 discloses that he had on same day given a separate written submission to said PI and orally requested to verify said claim of the relationship and annual income of Petitioner during 2003 to 2007 as according to him said income was in excess of Rs. 2,50,000/-per year. This written submission dated 29/8/2008 is not mentioned in vigilance report. Statement of one Ganu Narayan Vast, age 66 years, a retired government servant was also recorded by PI Shri Gad on 9/9/2008 and in it he has spoken of issuance of caste certificate dated 11/3/2007 to Sandeep on recommendation of president Shri Dayanand Naik of Bhandari Samaj at Bardez and its cancellation later due to information given by said Dayanand Naik to Mamlatdar and to the head office that Sandeep did not belong to Bhandari community. Said statement also discloses that executive committee members of Samaj brought it to their notice that Arjun Mahadev Vazarkar i.e. father of Petitioner Sandeep was not belonging to the community. Detailed inquiry from various sources revealed that Arjun was never member of Bhandari Naik community of Goa. Hence certificate dated 11/4/2007 issued by the Samaj was cancelled. It also states that in cancellation letter addressed to Deputy Collector, SDM Mapusa it was mentioned that Vazarkars are coming under Maratha Samaj i.e. Deuli caste. Shri Vast has also stated that to the best of his knowledge maternal grandparents (i.e. Rama Pednekar) of Petitioner were not from Bhandari Naik community and locals informed that they belonged to Devli community. Though the vigilance report relies upon inquiry conducted with Parshuram Sitaram Shirodkar - a neighbour of Petitioner, no statement either oral or written given by said Parshuram is on record. It is therefore clear that non-examination of said Parshuram by Petitioner before the Scrutiny Committee is not very relevant here.
45. Vigilance report also states that living conditions and status of Petitioner was also verified and it was found that he was income tax payer having stone quarry, transport vehicles and was engaged in business of stone excavation. He could not produce any document to establish his relationship with person registered as Mahajan in catalogue of Rudreshwara temple. It also mentions that he was not registered as mahajan of Rudreshwara temple and inquiry about his family deity revealed that his 'Kuldevata' is Mulvir of Malpe Pernem. Record of his oral statement as produced does not contain any of these words like 'family deity' or 'Kuldevata' or 'Mulvir of Malpe'. If PI Porvorim Shri Gad has made any independent report in the matter, our attention has not been invited to the same.
46. The vigilance report used by the Scrutiny Committee here is however nothing but comments of Sr. Superintendent of Police, Vigilance officer, Panaji-Goa on statements of Petitioner Sandeep, Respondent No. 4 Rajesh and of Shri Ganu Vast collected by him through PI Porvorim. This authority had no interaction with these persons and did not question them at all. The report, if any, prepared by the concerned PI Shri Gad who put the questions is not used at all. It also does not appear that the Sr. Superintendent of Police, Vigilance Officer, Panaji-Goa had any meeting with PI, Porvorim before submitting the so called vigilance report. Not a single fact disclosed by Shri Vast in his statement about the caste claim of Petitioner is based on his personal knowledge. Alleged sources mentioned by him are not even prima facie verified as their names are not sought from him by the PI. Oral statement if any, given by Parshuram is not on record. Personal verification of living status or about Kuldevata by PI stated in vigilance report also does not form part of record. Request for verification made in his oral statement by Respondent No. 4 only shows roving nature of his objections. He admittedly belongs to Bhandari Naik caste and, therefore, though not legally obliged, could have come with positive evidence to prove his specific assertion that Petitioner belongs to Devli Bane community or of people of his community, to show that Petitioner or his relatives have no connection with Bhandari Naik. His denial of relationship between Petitioner and Madev Baboni Naique is only on account of election dispute. He has not attempted to show that said Madev and 'Madeva Baboni Naique Ozarcar' mentioned in 1941 sale deed is not one & same. Whether recording of the name of father of Petitioner as 'Arjuna Naique Ozarkar' has got any impact on the controversy is not inquired into by the vigilance cell. Statement of Petitioner recorded by PI Porvorim reveals that forefathers of the Petitioner were from Morlem/Mollem Sanquelim in Bicholim Taluka and from there they migrated to Ozrim /Vazari in Pernem Taluka some time in 1930-1935. At Ozrim they were residing at Benale and he undertook to produce the form I & XIV later on. He stated that Mahadev Babni Naique (his grandfather), Jairam Babni (Naique) (grandfather's brother) and Babu Babni Naique (grandfather's brother) also shifted to Ozrim. He also stated that he did not have any documents to produce but assured to produce the death certificate of Jairam Babni Naique. He stated that his ancestors in 1941 shifted to Socorro, Porvorim Ambewal in Bardez Taluka. He has stated that they were collecting cashew and extracting liquor from it. There was a licence about it in the name of his uncle and he agreed to produce it. He stated that because of shifting from Ozrim his family started adding Vazarkar to the title Naique and started mentioning it as Naique Vazarkar. He also stated that some of his uncles residing at Serula Communidade were writing Shirodkar as surname and not Naique or Naique Vazarkar. However his uncle Jairam was using Naique only without any addition. He has answered the question about the identity of Mahadev Babni Naique (who migrated as above) by stating that he had no documentary evidence. His own birth is on 28/3/1969 and whatever he heard from ancestors was stated by him. His ancestors were using traditional dress of Langoti(Casti) and it was in use even then. He also stated that he does not have any succession document in the family. Vigilance Cell has not made any efforts to verify these aspects. Thus, material which could have otherwise come before the Scrutiny Committee in various statements made by the witnesses for and against the Petitioner is only gathered by PI Porvorim and Sr. Superintendent of Police has put it together i.e. particular part thereof. His compilation thus readied is forwarded as report of Vigilance Cell and has been acted upon as such by the Scrutiny Committee without ascertaining whether fair verification of caste required any further probe. The Sr. Superintendent of Police also never reported that it was not possible to undertake any such probe further. It is essential to note that Petitioner has denied any visit by PI Shri Gad to his residence or collecting of any material by him during it.
47. With the result, the Vigilance Cell has not attempted to find out castes recorded in school admission registers of the Petitioner and his blood relatives. The education and occupation of these blood relations is also not verified. If PI Shri Gad had visited the residence of Petitioner, why statement of elders in his family were not recorded has not been explained anywhere. There is absolutely no effort to find out whether property purchased in 1941 by Mahadev is still with the family of Petitioner or not. If the Petitioner has procured a false certificate of caste and his claim is dishonest, he has usurped the office fraudulently and he can be dealt with appropriately for such an act. Scrutiny Committee has in impugned order taken note of the case of Respondent No. 4 that Smt. Durgabai Vazarkar-mother of Sandeep is daughter of Rama and Laxmibai Pednekar who belonged to Devli caste. But again there is no vigilance report on it. As neither Vigilance Cell nor Scrutiny Committee has attempted to verify these cardinal aspects, it is more than apparent that there is failure to exercise the jurisdiction in the manner envisaged by Hon'ble Apex Court in case of Madhuri Patil (supra). Purpose of associating Police with such verification is to bring before the Scrutiny Committee the data which otherwise would not have come before it. Police Officer because of their investigative skill and authority are required to dig the material relevant either to support or negate the caste claim. Mere clerical exercise of recording some statements by PI and attempt of Sr. Superintendent of Police to comment upon its strength is not sufficient in the matter.
48. Judgments considered above show that vigilance report is mandatory. Though here Petitioner has challenged the report dated 18/9/2008 as not of Vigilance Cell as constituted by law, we are not going into said aspect at this juncture because on earlier occasion the report submitted by very same PI Porvorim was accepted by the Petitioner as vigilance report. It was in his favour and in ensuing litigation, he also attempted to stop fresh vigilance cell inquiry by pointing out that report. The judgment of this Court in case of Yogesh Kakulte (para 3) shows stage of home inquiry i.e. vigilance inquiry after claimant filed his documents before the Scrutiny Committee. Other judgment of this Court in case of Prabhu Survase again shows that information about area/village from which candidate hails form basic information. The scope of such inquiry is also laid down in Ku. Madhuri Patil. 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 proforma. Here, we find that report considered as vigilance cell report does not meet all these expectations.
49. However question is whether Petitioner can get any benefit out of these lapses. We find it convenient to address to this aspect after considering challenge to the impugned order of the Scrutiny Committee. One has to keep in mind that Petitioner has occupied reserved seat for more than 2 years and hence his entitlement to it needs to be determined even if he is to be tried for wrongly contesting for it.
50. Independent consideration of said order is really not necessary in view of findings reached on the vigilance aspect. The vigilance report has been challenged on the ground that report did not come from cell constituted in pursuance of judgment of Hon'ble Apex Court in case of Madhuri Patil. The specific objection as raised before PI Gad began his inquiry or then as raised before Scrutiny Committee does not find any answer. The objection has not been dealt with at all by the Scrutiny Committee as order dated 23/4/2007 accepted as answer by it does not reconstitute the vigilance cell. But it deals with only the procedure to be followed by Cell by directing that such verification should be done not by calling the claimant like Petitioner to the police station but by visiting his residence. Thus the nature of Petitioner's objection and also the purpose behind prescribing such visit to the residence of the claimant is missed here by the Scrutiny Committee. As per Madhuri Patil, 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. Thus, PI can be part of vigilance cell and he has to investigate into such claims. Here, it is not in dispute that PI Shri Gad was authorised by the officer designated as part of vigilance cell. Hence, we do not find any substance in technical objection being raised by the Petitioner. These observations of Division Bench of this Court in 2002 (4) All. M.R. 807 Dattatraya Ramrao Thorat v. State of Maharashtra are helpful even here:
22. The Petitioner has attacked the constitution of the scrutiny committee inasmuch as he states that the committee, which decided his caste claim, was not constituted in compliance with the directions of the Supreme Court in Kumari Madhuri Patil's (supra) case (review order). We may refer to para 4 of the said order : 3SCR888 : 'The caste scrutiny committee for social welfare agricultural affairs and sports department should comprise of Additional Commissioner (Revenue) as Chairman, the Divisional Social Welfare Officer as member and Research officer/ Welfare Officer as Member Secretary. The present verification committee certainly meets these directions. Though, the Supreme Court observed that alongwith the Vigilance Cell one Research Officer/ Tribal Development or Social Welfare Officer would be associated in finding the social status, the absence of a Research officer or Social Welfare Officer in the Vigilance Cell by itself would not vitiate the findings of the Scrutiny Committee so long as the scrutiny committee has been constituted as per the law laid down by the Apex Court.
These findings, therefore, show that such peripheral irregularities which do not impinge on merits are not fatal in the matter of caste verification. Here very same PI had earlier submitted a report and Petitioner had also attempted for its use only to avoid fresh inquiry.
51. Further consideration by the Scrutiny Committee shows that it has proceeded to evaluate the evidence as if it was an adversarial dispute for declaration of the caste. Witnesses for Petitioner are disbelieved observing that they are in the age group of 28 to 58 years and none of them were immediate neighbours or knowing his ancestors. Some of them are found to be interested in him due to political affinity. The Scrutiny Committee found that after withdrawal of caste certificate in his favour by the Samaj, the petitioner produced another letter from another taluka Bhandari community to support his caste. As it was only a letter and after cancellation of earlier certificate by the Samaj, it was found to be not relevant. Case about Mahadev Babani Naik being a relative i.e. grandfather or he and Mahadev Babani Naik Vazarkar being one & same person is not accepted by the Scrutiny Committee because of failure of Petitioner to produce any certificate/document issued by the competent authority or any succession certificate. Status of Mahadev as Mahajan of Rudreshwar temple was not taken note of as Devasthan did not issue any certificate of relationship between Petitioner and the said Mahajan, and as nobody from family of the Petitioner was recorded as Mahajan for last 70 years. The Scrutiny Committee held that Petitioner could not produce even death certificate of said Mahadev Babani Naik. It did not believe witness Subhash Kinalkar examined by Petitioner that in past Devasthan elections he visited the house of Petitioner as none of Petitioner's family members were Mahajans. Photographs of utensils used, haystack, cowshed were held not reliable evidence. It noted that as per report submitted by PI, Porvorim to his superiors, Petitioner did not belong to Bhandari Naik community. In view of all this the Scrutiny Committee recorded finding against the Petitioner and rejected his caste claim.
52. Thus only because the Petitioner could not prove his relationship with Madev or Mahadev Babani Naik i.e. person recorded as Mahajan or then because of his failure to show that his grandfather and said Mahajan were in fact one & same person, the Scrutiny Committee reached its conclusions. If Rudreshwar temple refuses to issue the certificate or Petitioner had no occasion to ask for any succession document, that by itself cannot sever his relationship with Mahadeo. There are some persons who have deposed about this relationship and their ages as such cannot be the ground to disbelieve them. Mention of said name in 1941 sale-deed, production of said document by Petitioner, his alleged possession of property purchased thereunder as per form I & XIV, mention of grandfather's name & his father's name in particular manner way back in 1962 in birth certificates, his real younger brother naming his first son as 'Rudresh' after God Rudreshwara as per desire of his grandmother Porwatabai are some of the relevant pieces of evidence ignored by the Scrutiny Committee. Similarly, certificate of registration of birth dated 12.12.1962, in which name of Petitioner's father has been mentioned as 'Arjuna Naique Ozarkar', affidavit dated 3/7/2007 of Suresh Tukaram Naik son of Tukaram Babani Naik, paternal uncle of Petitioner Sandeep to prove that family was using 'Naik' or 'Naik Vazarkar' or 'Vazarkar' or 'Ozarkar' as surname and it belonged to Gomantak Bhandari Samaj, birth certificate of Suresh dated 7/4/1993 showing Tukarama Babani Naique as his father, affidavit dated 25/10/2007 of one Madhukar Dhargalkar declaring that he belongs to Bhandari Naik caste and was secretary of Advisory Committee of said Samaj for Bardez area, that father Arjun Naik of Petitioner Sandeep belonged to Bhandari caste, that Arjun had bullock-cart, cattle and earned mainly through agriculture, affidavit dated 20/7/2007 by one Digambar s/o Narayan Kauthankar belonging to Bhandari community and declaring that Petitioner Sandeep belongs to said caste and is resident of Socorro, Bardez-Goa for last 65 years and Petitioner's family is known as Naik Vazarkar in community have not been specifically considered in the light of their cross examination. It is argued that this Digambar is relative of present Respondent No. 4. Affidavit in evidence dated 21/10/2008 tendered by Anand Mandrekar declaring that he belongs to Samaj, that he was authorised as recommender for issuing Naik Bhandari caste certificates in Socorro area, that Petitioner Sandeep & his family belonged to said caste and people of said caste never go to eat food at Devli(Bane) community, affidavit in evidence of Kartik Kudnekar dated 21/10/2008 declaring that Petitioner belongs to Bhandari Samaj, that Petitioner's uncle by name Narayan Mahadev Naik Vazarkar and Harischandra Mahadev Naik Vazarkar used to come to his residence to meet his father and his father as also Vazarkars were having bullock-carts, that his father used to say that Vazarkar family was Gadekars i.e. Bullock-cart carriers, affidavit in evidence of Subhash N. Kinalkar dated 21/10/2008 declaring that he was registered member/Mahjan of Shri Dev Rudreshwar temple at Harvelem-Goa, that he was vice-president of said Devstan, that family of Petitioner used to come to temple for Shivratri & Shrawana Somwara, that Petitioner's grandfather Shri Mahadev Baboni Naik Vazarkar was the registered founder member of Devsthan, that his father told him that said Mahadev used to reside earlier at Morlem in Bicholim Taluka were also filed before the Committee. Affidavit in evidence of Sadanand Sahnu Pednekar dated 21/10/2008 ex-secretary of Shri Dev Rudreshwar temple at Harvalem-Goa states that he also served as President & Secretary of Sattari Taluka Bhandari Samaj Committee. He knew late Mahadev Baboni Naik and his son late Arjun Mahadev Naik Vazarkar, that Mahadev was founder member at the time of registration of Temple under Mazania Act and name of Mahadev figured at sr. No. 1364 in list of Mahajans, that Mahadev used to come to temple with Arjun and that family of late Arjun Naik was also known as 'Ozarkars' and often used surname 'Vazarakar' or 'Naik Vazarkar'; Affidavit in evidence of Digambar Narayan Kauthankar dated 21/10/2008 disclosed that he knew family of Petitioner for 45 years, that he had seen Mahadev Baboni Naik Vazrakar, that said family was agriculturist with main occupation as cart driving, affidavits in evidence of Premand Vithu Kauthankar and Shyamsunder Vasant Kauthankar, both dated 21/10/2008 also mention that Petitioner Sandeep belongs to their caste i.e. Naik Bhandari Samaj, Sale deed dated 25/9/1992 to show that name of real brother of Petitioner is written as Shivdas Arjun Vazarkar @ Shivdas Arzun Naique Ozarcar at Sr. No. 13 and name of Petitioner himself is also written in identical fashion at Sr. No. 17 in it, the documents like ration card issued to cousin brother of the petitioner Mohan H. Naik, birth certificate of Babuso Mahadeo Naik in which Mahadeo Naik and Parvati Mahadeo Naik are shown as grandparents. Affidavits of said Babuso and Mohan who are sons of Harishchandra Naik, brother of petitioner's father are also filed before the Scrutiny Committee. Attention is also invited to the birth certificate issued to Keshav Harischandra Naik, another son of Harishchandra where along with surname 'Naik' surname 'Vazarkar' has also been used as part of surname and names of grandparents are also mentioned, as Mahadeo Naik Vazarkar and Parvati Mahadeo Naik Vazarkar. Affidavit of Suresh Tukaram Naik, paternal cousin uncle of the petitioner stated that Babani Naik Vazarkar was paternal great grandfather of Sandeep Vazarkar and the family has been using this surname like 'Naik' or 'Naik Vazarkar'. He also stated that the family belongs to Gomantak Bhandari Samaj. His certificate of birth wherein name of his grandfather has been recorded as Baboni Naique, death certificate of Mahadeo Naik Vazarkar which mentioned the name of his father as Babani Vazarkar, certifying that death occurred on 9.7.1980 and registered on 8.8.1980 is also produced. Scrutiny Committee has however remarked that death certificate of Mahadev is not filed by the Petitioner.
Shri Nadkarni has tried to demonstrate that these affidavits or documents do not further the case of Petitioner and they are having inherent defects. Our attention has been invited to the fact that 3 birth certificates of children of Arjun brought on record show that Arjun was born either in 1922 or in 1932 at Socorro itself, and as per the statement of Narayan i.e. brother of Arjun, aged 80 years, the family was residing at Socorro since his birth i.e. since 1927. In these circumstances, it is contended that these documents clearly show that story of migration of family from one place to another is false. Attention has been also invited to 1941 sale deed to show that name of Mahadeo has been recorded as landlord and from Village Socorro itself with contention that if Mahadeo had arrived at Socorro in 1940-41 itself, he would not have been mentioned either as landlord or as native of Socorro and it did not contain any story about migration. Affidavit of Digamber Kauthankar is assailed on the ground that he was claiming to know the family since last 65 years and they were residing at Socorro only. Learned Senior Advocate has pointed out that the deponent Digamber himself was only 54 years old. We cannot for the first time evaluate such rival arguments in an attempt to find out whether failure of Scrutiny Committee to apply mind to them has resulted in some prejudice or not. The documents are not irrelevant and being final fact finding authority, Scrutiny Committee was expected to atleast discuss their purpose and effect on controversy. The Scrutiny Committee has no material before it either through Vigilance Cell or through Respondent No. 4 to presume that two persons by name Mahadeo Babni Naik existed. Respondent No. 4 who belongs to Bhandari Naik caste did not bring any such material or then was not contending that name of grandfather of Petitioner was something else.
All this evidence and story prepared on its basis may be false, still as a final and only fact finding authority, said Scrutiny Committee has to comment on it. Even if Petitioner's grandparents on maternal side are presumed to be Devli, effect thereof on caste claim of Petitioner is not discussed. Neither Petitioner produced nor the Scrutiny Committee directed him to produce oldest school leaving certificate of any family member or then similar certificates or documents of his sons/daughters or of his other blood relatives on paternal side. It has come on record that his sister is married to a Bhandari Naik person by name Gurudas Naik and late father of said Gurudas was recognised mahajan of Rudreshwar temple. Relevant material supporting this appears to be overlooked by the Scrutiny Committee and some of the reasons given by it are not correct or even germane to the issue before it. Hon'ble Apex Court has already held that the documents can not be ignored merely because they are of recent origin. Similarly, the Scrutiny Committee here could not have overlooked the evidence of witnesses about relationship produced by Petitioner only on the ground that they are comparatively younger in age.
53. We also note that by bringing on record the evidence of owning bullock carts and being cartowners i.e. gadekars and by conducting cross-examination of PI Shri Gad who claimed to have visited his house, Petitioner attempted to bring on record some anthropological & ethnological traits. He also produced some research data used by the Backward Cell or National Commission for its evaluation and this material is not even weighed by the Scrutiny Committee anywhere. Hence, there is no effort to find affinity, if any in the matter. We, therefore, have to conclude that even the Scrutiny Committee has failed to exercise its powers and function in the manner expected of it by the Hon. Apex Court in Madhuri Patil's case.
54. None of the documents for whatever their worth or then even the independent witnesses like Mr. Sangesh Kundaikar, Mr. Sadanand Pednekar, both ex-office bearers and Mr. Subhash Kinalka, an ex-vice president and Mahajan of the Rudreshwara temple are even discussed to find out whether any importance can be given to their deposition about Petitioner being lineal descendant of Madev Baboni Naique. If this evidence was to be discarded it could have been done only for valid reasons. Their ages of 29 years, 54 years and 31 years by itself can not be the ground for not even mentioning their depositions. Failure to appreciate this evidence constitutes failure to exercise jurisdiction. Failure of Petitioner to examine his mother or any elderly member from his caste can not be the sole ground to reject his case entirely. The consideration by the Scrutiny Committee seems to be eclipsed by its conclusion that a socially forward i.e. wealthy candidate like Petitioner was not entitled to enjoy caste concession & that the vigilance cell was against him. The norm of creamy layer used by Scrutiny Committee was not relevant at all for procuring the OBC certificate. If said norm is assumed to be applicable, still it may at the most prohibit use of said certificate in the election of a local body. Scrutiny Committee was not concerned with election process at all. If Petitioner is a person from creamy layer and hence not entitled to contest, it is for Administrative Tribunal to examine it in election petition. Nobody has argued before us that an OBC person loses his caste or tribe by acquiring wealth. Purpose of reservation itself is to accelerate the social uplifting and progress of such backward persons and hence, by prospering they may at the most lose the boost meant for them earlier, but then they can not lose their caste itself. There is no such disqualification pointed out anywhere while identifying and notifying the Bhandari Naik as OBC. Thus entitlement of such wealthy person to obtain OBC certificate is not in dispute. Purposes for which he can use it is the issue in dispute and as Scrutiny Committee could not have examined it, this Court also can not decide it. Said aspect needs to be left open for adjudication in Election Petition already filed by Respondent No. 4. The case law i.e. both cases of Indra Sawhney and Ors., v. Union of India and Ors. & Ashoka Kumar Thakur v. Union of India and others (supra-judgments of Hon'ble Apex Court) and arguments in this connection are therefore not useful here. Judgments of Hon'ble Apex Court in the case of Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Ors. reported at : AIR2005SC800 and in the case of Meera Kanwaria v. Sunita and Ors. reported at : AIR2006SC597 relied upon by Advocate Nadkarni to urge that interpretation of Article 16 in Indra Sawhney and Ashoka Kumar Thakur (both supra) has to apply even for election purposes are also not required to be gone into. Similarly the State Government itself has issued circular on 3/7/2007 prohibiting grant of caste certificate only on the strength of status certificate issued by social organisations. This clearly shows that defective vigilance report or then withdrawal of certificate by the Samaj could not have been determinative either way. The argument of Adv. Desai that general body of Samaj only could have cancelled the certificate issued to Petitioner is therefore not relevant at all.
55. Petitioner had filed total 3 affidavits of his examination in chief and attempted to trace back his relation with Madev Baboni Naique recorded as Mahajan. In the process he also brought on record the fact that his near relatives were issued caste certificate by the Deputy Collector or then father of his brother-in-law was a recorded Mahajan. It is true that these caste certificates are not verified by the Scrutiny Committee. Hence, the Committee could not have relied upon them as held in Division Bench Judgment of this Court (unreported) dated 17.3.2008 in the case of Shri Conceicao Dias v. State of Goa and Ors. Writ Petition No. 9/2008. The aspects about 1941 sale deed or then about relationship with others like Suresh i.e. his cousin uncle who have such caste certificates are not even subjected to any cross examination. Questions put to him by the Presiding Officer also show undue importance given to grant or cancellation of certificate in his favour by the one Samaj or the other social organization. Ration card issued to Mohan Harischandra Naik and birth certificate dated 29/9/1989 of his cousin uncle Bauso Harischandra Naik which mentions name of Babuso's grandfather as Mahadev or his grandmother's name as Parvati are again ignored. Similarly birth certificate of Keshav dated 21/4/1998 in which his name is recorded as Keshav Harischandra Naik Vazarkar with name of his grandparents using the surname as Naik Vazarkar or its relevance, if any, is not appreciated at all.
56. Shri Nadkarni, learned Sr. Advocate has urged that the parameters applicable to caste verification of scheduled tribe or scheduled caste candidates will not be relevant in present matter. He has demonstrated that application for issuance of caste certificate moved by petitioner was incomplete as it did not mention the name of backward caste in relation to which certificate was sought. He has demonstrated that Petitioner because of his influence procured the caste certificate from Deputy Collector in one day i.e. all formalities were completed by Talathi, Mamlatdar and by Dy. Collector in few hours. The Petitioner also procured validity from Scrutiny Committee very easily. He pointed out that very same PI of Porvorim earlier gave vigilance report in his favour and Petitioner was strongly relying on it. It can be seen that present Respondent No. 4 was required to approach against the validity accorded to that certificate and this Court on 22/10/2007 permitted the Scrutiny Committee to have re-look in the matter. It is apparent that Scrutiny Committee was therefore to consider the caste claim afresh and it does not mean that it was only to find out whether earlier exercise completed by it in favour of the Petitioner on 25/7/2007 was correct or not. We are satisfied that said earlier exercise was an unsustainable act on the part of Scrutiny Committee and its members obliged the Petitioner by giving validity just for asking. The learned Advocate General, therefore, rightly sought leave to re-verify the caste claim. Present Respondent No. 4 who had filed said writ petition accepted that re-verification exercise. It is therefore obvious that nature of inquiry undertaken by Scrutiny Committee was same and regulated by the judgment of Hon'ble Apex Court in Madhuri Patil's case. There was no question of the Scrutiny Committee finding out whether earlier validity given by it to Petitioner was legally sustainable or not and then of not discharging the duty of verification if earlier exercise was found wrong. Only option was of fresh exercise and no different parameters were therefore contemplated in said re-verification.
57. Similarly Hon'ble Apex Court or then the State Government have not contemplated different standards of verification by the vigilance cell. The precaution to be taken while examining the caste claim of the Scheduled Tribe candidate is no doubt emphasized, but then that does not mean that Scrutiny Committee is free not to follow the mandate therein for OBC candidates. 58. Shri Nadkarni has also shown to us that caste certificate was given to Petitioner without any application of mind by the authorities. The authorities like Talathi did not record any statements of the neighbours or relatives and acted only on affidavit filed by Petitioner and information supplied by him. We find that his application therefor was itself incomplete and could not have been entertained in normal situations. The caste certificate was also allowed to be used without verification from Scrutiny Committee. Petitioner after receipt of show cause notice from the Mamlatdar, approached the Scrutiny Committee to anyhow procure validity and he suppressed the show cause from it. His only purpose was to frustrate the show cause proceedings for cancellation of caste certificate. However none of these facts even if true can now invalidate the caste claim or permit deviation from the procedure of verification stipulated in Madhuri Patil (supra) by the Hon'ble Apex Court. In reply to show cause notices petitioner produced 1941 sale deed and affidavits of his relatives to show that he belonged to Bhandari Naik caste. Sale deed was not filed to establish any relation with Madev Baboni Naik -a mahajan of Rudreshwar temple but only to show long residence at Socorro. It is also correct that there was no plea of any migration of forefathers, but then those documents do not militate with the plea taken later by him. Undue haste shown by Petitioner in procuring the certificate can be termed as unnatural but not fatal if after due verification his caste claim is not turned down. Same can also be said about out of way help bestowed upon him by the authorities. The law of the land entitles Petitioner to have his caste claim considered as per law. If ultimately it is found that he has abused his position by usurping the advantage meant for somebody else, he can be dealt with suitably and punished. But even for said purpose proper verification of his caste claim is essential. Our attention has been drawn to the fact that death certificate of Mahadev Babani Naik is deliberately not proved on record by Petitioner. It is pointed out that as per document produced and not proved Mahadev died in 1980 and his father was one Babal. Said name 'Babal' was changed in 2007 by Petitioner as 'Baban' to suit his story of relation with mahajan Madev Babani Naique. The Scrutiny Committee has not given any such reason while invalidating the caste claim. Hence, at this juncture, in view of other material prima facie considered by us, we leave this aspect open for necessary consideration by it. We only note that there are certain documents like 1941 sale deed or 1962 birth certificates which mention said name as 'Baban' and not 'Babal'.
59. Petitioner has not given details in support of his caste claim in his first application dated 11/4/2007 for grant of caste certificate. Though he has left column of caste and sub-caste blank, he has filled in column 8 regarding serial No. of caste in central list of OBC by mentioning CER. No. 26478. It relates to Bhandari Naik community only. He has not filled in information about property, income but then at the end has declared that he does not belong to creamy layer. With it he has supplied his birth certificate, death certificate of his father Arzun, Ration card showing family members, certificate of birth of his elder brother dated 28/1/1998 showing that surname is mentioned therein as 'Naique Ozarkar'. He also gave income certificate dated 10/4/2007 issued by the Village Panchayat stating that income of his family for 2004-2005. 2005-2006 and 2006-2007 was Rs. 3,30,000/-only. He admitted that he obtained report of Talathi and gave it to Mamlatdar. Petitioner in cross examination stated that he was not aware whether Mamlatdar called for said report as per procedure. Talathi in said report has mentioned Petitioner's occupation to be 'service' which is contrary to material on record and wrong even according to Petitioner. Talathi has also stated that he does not belong to creamy layer. Report is stated to be prepared after inquiry, but then column about information of place of origin is left blank. It is to be noted that Samaj issued certificate to Petitioner at 10.00 AM on 11/4/2207 and then he moved the application to Mamlatdar. Office of Talathi is at a distance of about 14 kms. from Mamlatdar's office. The report of Talathi was given at 2.00 PM on same day and then papers came back to Mamlatdar who forwarded the same to competent authority i.e. Dy. Collector and said authority then granted provisional certificate on that day only to Petitioner. This therefore clearly shows the clout of Petitioner in the offices of these authorities and it becomes clear that without conducting any inquiry and without following the procedure, the authorities obliged him. However that by itself is not sufficient for Scrutiny Committee to invalidate the caste claim.
60. Another question is the effect of late disclosure of place of his origin and the migration therefrom or then of alleged Mahajanship of his grandfather Mahadev Baboni Naique. Petitioner has brought on record the evidence showing that he/his father and brother were regular visitors of Rudreshwara temple and he used to visit it with his father deceased Arzun or Arjun. Arzun has expired on 17/10/2005 while Mahadev i.e. Arzun's father expired in 1980. Witnesses have deposed that they knew Petitioner as grandson of Mahadev-a mahajn of Rudreshwara temple. Petitioner is born on 28/3/1969. He was thus 11 years old when his mahajn grandfather expired. First son of his brother Subhash is named as Rudresh in 1982 as per desire of grandmother Parvatbai i.e. wife of Mahadev. It is difficult to believe that Petitioner therefore would not point out Rudreshwara as family deity immediately i.e. at first available opportunity. Similarly, if all this story is correct the Petitioner would have mentioned it in his first application for obtaining the certificate or then in any case, as his reply to the show cause notice or then in any case, to PI Porvorim on 29/8/2008 when his statement was recorded. There is no such disclosure by him. But then Affidavit of his uncle Digambar aged about 80 years shows that since his birth i.e. 1927 or 1928 entire family was residing at village Socorro itself. Not only this, 3 births recorded together in 1962 also show that Arzun i.e. father of Petitioner was born at Socorro itself. This and other documents show an attempt then made by Petitioner to prove that his family was native of Socorro itself. This effort and above story of visit to Rudreshwara temple or of naming son after God Rudreshwara also need to be appropriately dealt with.
61. It is important to note how the story of migration enters the field. After receipt of show cause notice dated 18/6/2007, Petitioner replied to it on 26/6/2007. He pointed out that certificate issued to him was based not only on certificate of Samaj but upon independent verification by the Mamlatdar. As stated above, this so called independent verification was completed in few hours and was obviously a farce. Apart from that, Petitioner managed a certificate dated 14/6/2007 from Gomantak Maratha Samaj mentioning that neither he nor his father Arjun were its members. This was with a view to refute the case that he belonged to Devli community. Show cause notice is itself 4 days after this Certificate of Maratha Samaj. Hence the reason for procuring such certificate on 14/6/2007 has not come on record. But then in cancellation or revocation letter dated 8/5/2007, president of Bahndari Samaj has stated that Petitioner comes under Maratha Samaj (Devli). Date of knowledge of this communication to Petitioner has not come on record. All these facts demonstrate that Petitioner was trying to put best possible documents before the authorities to show his bonafides. Hence, can it be presumed that he did not realize importance of visits to Rudreshwar temple by his grandfather Mahadeo or his father Arjun. Why could he not place on record the desire of his grandmother to name his nephew as Rudresh and naming of the child accordingly in 1982 itself. If Rudreshwar was really a family deity, all necessary details would have been pleaded by him at first available opportunity. Petitioner then filed additional reply on 20/7/2007 and produced certificates dated 5/7/2007 certifying Petitioner's cousin uncle Suresh Tukaram Naik to be Bhandari Naik and dated 26/6/2007 issued by the Samaj certifying said Suresh and his father Tukaram Babani Naik to be its bonafide members. These certificates are not verified by the Scrutiny Committee and are not binding. It only shows the manner in which certificates were being issued by the Samaj. He produced birth certificates of himself, his 2 brothers and a sister, his school leaving certificate and copy of sale deed dated 2/12/1941 to show that he and his family were residing at Soccrro. On 27/9/2007 he filed additional documents like affidavit of Suresh to establish his relationship, certificate dated 5/7/2007 issued by Deputy Collector to Suresh etc. He also pointed out letter dated 25/7/2007 issued by the Ex-officio Joint Secretary & Director of Social Welfare regarding his own social status certificate. In reply dated 8/10/2007, he pointed out that Talathi on the basis of documents and statements made before him by various persons reported that Petitioner belonged to Bhandari Naik caste. He contended that Mamlatdar did not consider certificate of Gomantak Maratha Samaj that Petitioner or his father were not its members while submitting the adverse report. He also mentioned the Scrutiny Committee has validated his caste certificate. He also raised some contentions to allege that procedure followed by the Mamlatdar was biased. In other reply submitted on 8/10/2007 itself he also relied upon 1962 birth certificates to show that therein his father was shown as of cart-owner category and it was a recognised source of livelihood for Bhandari Naik community. On 10/10/2007, he submitted his objection to the report dated 24/9/2007 by PI Porvorim contending that all persons whose statements were recorded by the Police were either politically or otherwise against him. Thus, till this date alleged Mahajanship of Mahadev Naik or story of migration from Morlem to Ozorim and then to Socorro finds no mention.
62. Scrutiny Committee began process of fresh verification and Petitioner filed his reply before that Committee on 4/1/2008 wherein the story of Mahajanship of Mahadev or then of migration is again missing. Vide order dated 29/1/2008, Scrutiny Committee cancelled his caste certificate and then Petitioner approached this Court in W.P. 111/2008. This Court found that Scrutiny Committee did not discharge the obligations cast upon it and was swayed by the withdrawal or revocation of caste certificate by the Samaj. Hence the matter was remanded back to the Committee. After remand for the first time the story of Madev Babani Naique being a mahajan of Rudreshwar temple, story of his migration from Morlem to Ozori and then to Socorro etc. has been pleaded by the Petitioner on 1/8/2008. But then no explanation as to why these facts could not be pleaded earlier is offered. In cross examination he stated that as there was no document about Mahajanship of Madev Babani Naik with him said fact was not disclosed earlier. Petitioner of his own has not offered any reason for not revealing the migration story and it is also not sought from him during verification either by the Scrutiny Committee or then by Respondent No. 4.
63. Question before us is whether said story needs to be ignored as afterthought or then facts which have come on record warrant further inquiry by Scrutiny Committee by using its vigilance cell? Or, then as the Petitioner got full opportunity to prove his caste, the matter needs to be set at rest? We can not ignore the effect the order of the Scrutiny Committee on family of Petitioner and on his relatives. We wish to mention that on record is the joint statement of residents of area in which Petitioner resides recorded on 16/7/2007 by Mamlatdar. These persons were apparently supporting the cause of Respondent No. 4. Petitioner has assailed this statement as false and politically motivated. He has challenged the procedure followed by Mamlatdar as biased one. But even in this statement the villagers have stated that Petitioner was not originally from Socorro but his family migrated from village Ozari in Pernem taluka. They have added that Petitioner belonged to Maratha Samaj i.e. Bane (Devli) and Maratha samaj recognised them as such. Thus the story of migration though pleaded on 1/8/2008 by Petitioner, the villagers had brought it on record on 16/7/2007 itself. These villagers are prima facie the opponents of Petitioner.
64. Records also show that one Mahadeo Babani Naique was the grandfather of Petitioner. Caste certificates issued by Samaj in favour of his blood relatives have also come on record. Competent Authority has thereafter issued caste certificates to them. His sister is married to one Gurudas Krishna Naik from Camurlim and father of Gurudas Krishna Naik - late Krishna Bablo Naik Camulkar was allegedly registered Mahajan of Rudreshwar Devsthan and Gurudas belongs to Bahandari samaj. The different mode in which members of same family have been writing their surname also reveals some substance in the story of migration. All this material atleast prima facie support the need of proper verification. Affidavit in evidence of Sangesh Suhas Kundaikar dated 21/10/2008 ex-secretary of Shri Dev Rudreshwar temple at Harvelem-Goa, that he knew Petitioner Sandeep and his brother Subhash, that his grandfather Mahadev was founder member of the Temple, that brother-in-law of Petitioner by name Gurudas Krishna Naik from Camurlim was known to him and that father of Gurudas Krishna Naik - late Krishna Bablo Naik Camulkar was registered Mahajan of Devsthan and Gurudas belonged to Bahandari samaj is not properly evaluated by the Committee. It is seen that Respondent No. 4 could not conduct any cross-examination in so far these facts about Gurudas or Gurudas's father are concerned. Scrutiny Committee has not even attempted to find out truth in evidence of his real brother Subhash that he named his first son born in 1982 as Rudresh because Rudreshwar is their family deity as per wish of his grandmother. This is also stated by Petitioner himself.
65. Scrutiny Committee could not have rejected the caste claim only because Petitioner did not establish his relationship with Mahadeo Babani Naik-a person recorded as mahajan. There cannot be any presumption of existence or otherwise of two Mahadeo's with same name of father and same surname. Petitioner and his witnesses assert this relationship on oath with Madev or Mahadev Baboni Naique. Denial of such relationship by Respondent No. 4 is just for sake of denial and not with knowledge that name of grandfather of Petitioner or of father of Arjun. Neither vigilance report nor Respondent No. 4 brought on record any evidence to create doubt about such claim. 1928 registration as Mahajan of said Mahadeo, 1941 purchase in his name and alleged present possession of that property with Petitioner are the circumstances which when read in connection with evidence of witnesses like Sangesh Suhas Kundaikar warrant a remand to Scrutiny Committee. As we find need for further inquiry, all these questions are left open. The impugned order of the Scrutiny Committee also shows that it did not examine anthropological or ethnological features.
66. Judgment of the Hon'ble Apex Court in the case of State of U.P. and Ors., v. Maharaja Dharmander Prasad Singh etc., reported at : 1SCR176 , has been relied upon by Senior Advocate Shri Nadkarni to show the scope available in judicial review. Its relevant portion reads:
28. It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reality, a review for abuse of discretion. It is true that amongst the many grounds put forward in the show cause notice dated 19-1-1986, quite a few overlap each other and are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature. Some of them even if true are so trivial that no authority could reasonably be expected to cancel the permission on that basis. For instance the ground that the permission was applied for and granted in the name of one only of the two lessees would be one such.
However, Judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. In Chief Constable of the North Wales Police v. Evans (1982) 1 W.L.R. 1155 refers to the merits-legality distinction in judicial review. Lord Hailsham said:
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court.Lord Brightman observed : .Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made....And held that it would bean error to think : .that the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice. It would, however, be appropriate for the statutory authority, if it proposes to initiate action afresh, to classify the grounds pointing out which grounds, in its opinion, support the allegation of fraud or misrepresentation and which, in its view constitute subsequent violations of the terms and conditions of the grant. The grounds must he specific so as to afford the Lessees an effective opportunity of showing cause.
We have already noted above how the relevant material is overlooked by the Scrutiny Committee resulting in failure to exercise the jurisdiction. In : AIR2007SC295 'State of Maharashtra v. Ravi Prakash Babulalsing Parmar' (From : 2004 (2) Bom CR 821 of Nagpur Bench), Hon. Apex Court States:
31. Reliance has also been placed in Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra and Ors. : 3SCR466 wherein this Court referring to Madhuri Patil (supra) on the fact situation obtaining therein opined :
17. Applying the above test to the facts of the present case, we are satisfied that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to an important document 'Sl. No. 9' which led the Committee ultimately to record a finding against the appellant. By a wrongful denial of the caste certificate to the genuine candidate, he/she will be deprived of the privileges conferred upon him/her by the Constitution. Therefore greater care must be taken before granting or rejecting any claim for caste certificate.
18. The High Court without appreciating the probative value of the documents placed before it has dismissed the writ petition filed by the appellant by simply accepting the conclusions reached by the second respondent Committee. Undoubtedly, in cases of this type, the burden heavily lies on the applicant who seeks such a certificate. That does not mean that the authorities have no role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate. We are of the view that the authorities concerned must also play a role in assisting the Committee to arrive at a correct decision. In this case, except the documents produced by the appellant, nothing has been produced by the authorities concerned to arrive at a different conclusion.
32. The said decision, therefore, is also an authority for the proposition that the Committee can go into the question as to whether a caste certificate has rightly been issued or not. The authorities concerned were also found to have some role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate.
In Yogesh Madhavrao Kakulte vd. State of Maharashtra reported at 2006(3) Mah.L.J. 691, the Division Bench of this Court observes:
In cases where the decision of the Committee suffers from the vice of non-application of mind, the decision of the Committee has to be interfered with. In this behalf, reference can be made to the decision of Apex Court in the matter of Gayatrilaxmi Nagpure v. State of Maharashtra and Ors. reported in : 3SCR466 . In similar fact-situation, after referring to the principles laid down in Ku. Madhuri Patil's case (supra), the Apex Court observed in para No. 17 as under:
17. Applying the above test to the facts of the present case, we are satisfied that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to an important document 'Sl. No. 9' which led the Committee to ultimately record a finding against the appellant. By a wrongful denial of the caste certificate, the genuine candidate, he/she will be deprived of the privileges conferred upon him/her by the Constitution. Therefore, greater care must be taken before granting or rejecting any claim for caste certificate.11. In the present case also, it can be seen that the petitioner has produced documents substantiating his caste claim. Though the documents are of the recent origin, the petitioner has proved his affinity and ethnic linkage with Mahadeo Koli, Tribe, by correctly giving information regarding peculiar traits, characteristics, customs, usages etc. of his tribe. Therefore, in the peculiar circumstances of this case where all the near blood relatives of the petitioner are illiterate, the Committee ought to have given due weightage to the documents produced by him and after considering the probative value of the documents produced and the fact that petitioner has established his affinity to and ethnic linkage with 'Mahadeo Koli' Scheduled Tribe, the Committee ought to have validated the tribe claim of the petitioner. Since the Committee has utterly failed to give due weightage to the material on record, decision of the Committee cannot be upheld.
67. Though a case for remand is made out, we cannot forget the attitude of Petitioner. He is the person who applies for caste certificate at eleventh hour and does not furnish any information. The prescribed proforma contains several blanks at material places and those are conveniently ignored by Mamlatdar and Deputy Collector. The revenue officers like Talathi, Mamlatdar and even Competent Authority do not conduct even basic inquiry and only because of certificate issued by the Samaj , they oblige him by issuing the caste certificate within few hours. The records show that there was no inquiry at all and all this happened due to influence wielded by the Petitioner. Petitioner knew that his income as shown by the Secretary of Panchayat was incorrect, but then he did not get it corrected. Not only this, he continued to modify his story from time to time but then never made available any material for its verification. He did not produce any revenue records to show that property purchased in 1941 by Mahadeo Babani Naik was still with him. If he or his father, brother, etc. were regular visitors or devotees of Rudreshwar, the said fact normally ought to have been disclosed in his reply to show cause notice for withdrawal of his caste certificate. If his nephew was named Rudresh because of the sentiments in 1982 itself, it also is a material piece of evidence. He concealed these details even in last inquiry by vigilance cell and avoided its verification. Earlier Scrutiny Committee had given him validity by ignoring the judgment in case of Ku. Madhuri Patil just for asking. Then on second occasion, caste certificate was declared invalid for apparently unsustainable reasons. The State Government could not defend that order in High Court and again Scrutiny Committee undertook same exercise third time. Thus, the members of Scrutiny Committee as also the responsible government officers did not perform their respective duties freely and fairly. Petitioner procured caste certificate within few hours and it was issued even without any prima facie independent material on record by the competent authority. Scrutiny Committee has been then refusing to verify it as per law. Because of all this, Petitioner has continued to occupy the reserved seat to which he may not be ultimately entitled to. We find that because of his influence only, he has continued for about 2 years in the office. He is wealthy businessman in mining and very well knows the importance of the documents to be filed and stand to be taken. All these factors and other facets thereof do not establish his image as clean and honest litigant. He appears to be interested in continuing on post of Pancha as long as he can. This attitude and conduct needs to be reconciled with procedure to be adopted by the Scrutiny Committee. He has the certificate issued by the competent authority in his favour. But in present facts there can not be any presumption of validity in its favour.
68. : AIR2005SC547 'Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar' (From : Bombay) considers Evidence Act (1 of 1872), Section 114(e) and Representation of the People Act (43 of 1951), Section 86, Section 81(1) to find out whether true copies of election petition were presented to be served on respondent. Presence of endorsement of Registrar of High Court that true copies were filed at time of presentation of election petition and that 'Election petitions were in order' is construed to raise a presumption that true copies were served on respondent. Onus is cast upon respondent to adduce evidence and bring on record adequate materials so to rebut presumption of correctness of official work having been done in regular course of business. As no such material was brought to prove to the contrary by respondent, petition was found not liable to be rejected for noncompliance of Section 81(3). Similarly in : (1997)IILLJ856SC 'Ashwani Kumar v. State of Bihar' while considering the issue of presumption as to official acts in the matter of appointments made by Govt. authority as procedure prescribed by Govt. circulars was not followed, Hon'ble Court held that presumption under Section 114, Illustration (e) does not get attracted. In 2007(6) Mh.L.J. 36 Vijay Kumar Ingle v. State of Maharashtra in para 22 it has been held that law does not create any presumption that a certificate once issued by the competent authority carries any presumptive value. Here also there can not be any presumption in favour of caste certificate procured by the petitioner. On the contrary, looking to the state of affairs on record, unless found valid, it needs to be treated as invalid. Reservation in elective post is an important constitutional safeguard which can not be allowed to be abused by the persons like Petitioner who reveal scant respect for rule of law and democracy. In : AIR2008SC1784 'Yogesh Ramchandra Naikwadi v. State of Maharashtra', Hon'ble Apex Court has made it clear that the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. Here Petitioner got elected as Pancha by procuring the certificate hurriedly in breach of prescribed procedure.
69. We therefore separate the issue of his election and continuation on post of Pancha from the caste verification controversy. Accordingly though we quash and set aside the impugned adjudication by the Scrutiny Committee, we do not pass any interim orders to enable him to continue as pancha. In the interest of justice, we grant him one opportunity as last chance to substantiate his caste claim with all relevant material before the Scrutiny Committee. Same is subject to payment of cost of Rs. 100000/-by him to High Court Legal Aid Services Sub-Committee, Goa within 4 weeks from today. If the costs are so deposited, Scrutiny Committee shall give Petitioner such opportunity and reconsider all the challenges as raised before it in the light of material which may come on record and deliver fresh order as per law. It is open to Scrutiny Committee to call for fresh vigilance report if found necessary by it. If during this period, the vacancy caused due to removal of Petitioner in Panchayat is filled in, same shall be subject to said decision by the Scrutiny Committee.
70. Subject to above directions, we quash and set aside the order dated 26.11.2008 and Report of Vigilance Cell dated 18.9.2008. Petition is, thus, partly allowed.