J.B. Pardiwala, J.@mdashAs common questions of fact and law are involved in all the three above referred petitions, they were heard together and are being disposed of by this common judgment and order.
2. In all the three captioned petitions, the controversy relates to the genuineness of the Caste Certificate issued in favour of the respective Petitioners. It appears that the Vigilance Officer working in the office of Scheduled Tribe Department, Panchmahals, Godhra, has come to the conclusion that the respective Petitioners have obtained the Caste Certificate fraudulently. The Vigilance Officer also came to the conclusion that the Caste Certificate is a forged and bogus certificate. Accordingly the Director of Primary Education, Gujarat State, passed orders in exercise of powers under the Gujarat Educational Institutions (Pre-primary and Primary Education Training Colleges) Rules, 1984 and cancelled the admission obtained by the Petitioners in the respective colleges on the strength of the Caste Certificate.
3. At this stage it would be expedient to state the facts of each of the three petitions in nutshell.
4. Special Civil Application No. 2565 of 2011
The Petitioner requested for Caste Certificate, which was issued by Respondent No. 2 after verifying the necessary record on 23rd July, 2007. The Petitioner passed her examination of standard 12, which was held in the month of March, 2010 securing 77.29%. She wanted to take admission in P.T.C. course and therefore, applied for admission through Centralised Admission Process. The Petitioner was admitted in Respondent No. 4 College, which is a self-finance college. The Petitioner studied for whole year in Respondent No. 4 College. The Respondent No. 4 College vide letter dated 19th February, 2011 informed the Petitioner that Respondent No. 1-Director of Primary Education, vide order dated 17th January, 2011 has cancelled her admission in P.T.C. on the ground that the Caste Certificate, which was produced, has been found to be forged and fabricated.
5. Special Civil Application No. 4369 of 2011
The Petitioner belongs to "Raval Bhil" community, which is notified as Scheduled Tribe. The father and forefathers of the Petitioner belongs to "Raval Bhil", which is included in the list of Scheduled Tribe community. It is a case of the Petitioner that her father is having land falling within the ambit of Section 73AA of the Bombay Land Revenue Code. It is also the case of the Petitioner that father and other family members have been issued Caste Certificate by the Competent Authority and after verifying the necessary records, Caste Certificate was issued in favour of the Petitioner by the Competent Authority on 07th June, 2007. The Petitioner got admitted in the P.T.C. course in open category on merits and studied for two years in the P.T.C. course and in second year, the Petitioner applied for scholarship. It is her case that neither the scholarship is given to the Petitioner nor any other benefit of being candidate of Scheduled Tribe has been extended in her favour. However, Respondent No. 4 college informed the Petitioner that Respondent No. 1-Director of Primary Education, has vide order dated 05th February, 2011 not only cancelled the admission of the Petitioner, but also directed to initiate appropriate criminal action.
6. Special Civil Application No. 4365 of 2011
The Petitioner belongs to "Hindu Bhil" community, which is notified as Scheduled Tribe. It is the case of the Petitioner that her father and forefathers also belong to "Hindu Bhil" community. The Petitioner passed her standard 12 examination securing 71.29% of marks and obtained admission in the P.T.C. course through Centralised Admission Procedure. As the Petitioner had obtained 71.29% in standard 12, she got admission in open category on the basis of merit in Respondent No. 4 college. At the time of applying for admission, the Petitioner attached all the Certificates including the Caste Certificate, which was issued in her favour by the Vigilance Officer, Tribal Department, Panchmahals, Godhra dated 28th June, 2000. It is the case on behalf of the Petitioner that family members of the Petitioner have also been issued the Caste Certificate and based on that, Caste Certificate was issued in favour of the Petitioner certifying her to be a member of Scheduled Tribe belonging to the category of Hindu Bhil. It is her case that she studied for the whole year in the first year of P.T.C. course and at the fag end of the academic year, Caste Certificate was cancelled and consequently admission was also ordered to be cancelled.
7. In all the above three captioned petitions, contention is common. The contention is that while passing the impugned orders cancelling the admission from the college and also at the time of declaring the Caste Certificate to be bogus and obtained fraudulently, No. opportunity of hearing has been given to the Petitioners.
On 01st July, 2011 this Court passed the following order:
Counsel for the State is allowed a week''s time to get instructions and find out as to whether any Scrutinee Committee has been constituted for finding out the validity of the caste certificate issued in favour S.C./S.T. candidates as prayed for by the Petitioners. If such Committee has been constituted, then, to file a reply as to whether or not the certificates issued to the Petitioners were considered by the such Committee by giving opportunity of hearing to the Petitioners. Post the matters on 15th July 2011 within ten cases.
8. In compliance of the order dated 01st July, 2011, the Vigilance Officer, Tribal Department, Panchmahals, filed an affidavit-in-reply justifying as to how and why the Caste Certificate has been cancelled. In all the three writ petitions the affidavit is practically verbatim the same. In the affidavit-in-reply it has been stated as under:
1. I have already filed an affidavit in reply in this matter on merits of the case and therefore this affidavit is only filed for the limited issue observed by this Hon''ble Court vide order dated 01.07.2011, whereby this Hon''ble Court had directed the state authority to file an affidavit on two counts; Firstly to state that whether any scrutiny committee has been constituted by the State Government pursuant to the judgment of Apex Court in Madhuri Patil''s case and secondly on the point that whether the caste certificate of the Petitioners were considered by such committee or not?
2. I submit that there is a scrutiny committee constituted by the State Government on 28.05.2010. A copy of the same is annexed hereto and marked as Annexure R I. Wherein the committee is consisting of 5 members i.e.
(1) Additional Secretary/Joint Secretary (Caste Certificate Chairman, Schedule Tribe Department), Sachivalaya, Gandhinagar
(2) Commissioner (Tribal Department), Premetive Group, Gandhinagar Members
(3) Director of Tribal Research & Training Centre, Gujarat Vidhyapith, Ahmedabad, Member
(4) Deputy Commissioner (Caste Certificate) Birsa Muda Bhavan, Gandhinagar, Member Secretary
(5) Section Officer (Caste Certificate), Tribal Development Department, Gandhinagar
3. I submit that so far as the certificates of the Petitioner whether the same are considered by the scrutiny committee or not? I humbly submit that the same were never placed before the scrutiny committee in as much as that the same were never issued by any competent authority; which is precise submission of the Respondent authority and therefore the same were taken into consideration by vigilance officer of the Tribal Development Department and in the same, the vigilance officer has prepared the report that certificate produced by the Petitioner is bogus and forged one and upon such report the impugned order is passed.
4. I most humbly submit that so far as the securtinity of the Caste Certificate the Petitioner is concern the same is only for those certificates which are issue by the competent authority and same are issued by the competent authority upon documents produced by the candidates but in this case certificates were never issued by the competent authority and therefore there is No. question of placing the same before the committee arises and hence Petitioner has not only forged the Caste Certificate but also has taken undue-advantage of these certificate for obtaining admission and therefore petition deserves to be dismissed.
9. We have heard learned advocate Ms. Mamta R. Vyas appearing for respective Petitioners and learned Assistant Government Pleader Ms. Krina Calla appearing for the Respondents.
10. Taking into consideration the peculiar facts of the case and controversy involved, we are of the view that the Authorities have committed error apparent on the face of the record. Way back in the year 1994 the Apex Court in the case of
11. We are of the view that firstly cancellation of Caste Certificate and based on such cancellation when the admission of respective Petitioners are cancelled, it entails civil consequences. Once any action entails civil consequences, then before such action is taken, person who is likely to meet with the civil consequences, may be heard and should be given an opportunity to defend. This is exactly what the Supreme Court has said in the case of Kumari Madhuri Patil and Anr. (Supra) while laying down the procedure. We would like to quote paragraph Nos. 13, 14, 15 and 16 of the judgment.
13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
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 or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
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 officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claiMs. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such 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 of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or ''doubtful'' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause-notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in No. case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him /it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, No. further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings
the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only 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 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 educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.
16. Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons.
17. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts.
18. Whether Appellants are entitled to their further continuance in the studies is the further question. Often the plea of equities or promissory estoppel would be put forth for continuance and completion of further course of studies and usually would be found favour with the courts. The courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must come with clean hands. He who comes to the court with false claim, cannot plead equity nor the court would be justified to exercise equity jurisdiction in his favour. There is No. estoppel as No. promise of the social status is made by the State when a false plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC & ST (Amendment) Act, 1976, which is later found to be false. Therefore, the plea of promissory estoppel or equity have No. application. When it is found to be a case of fraud played by the concerned, No. sympathy and equitable considerations can come to his rescue. Nor the plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and vary in considering such cases.
12. It is very clear that the Vigilance Officer has to prepare a report after personally verifying and collecting all the facts of the social status claimed by the candidate or parent or guardian, as the case may be. The Vigilance Officer is also obliged to examine school record, birth register, if any. He should also examine the parent, guardian or the candidate in relation to their castes, etc., or such other person, 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, etc. On the basis of the report of the Vigilance Officer, if it is found that the claim for social status is not genuine, then the Director concern has to issue show cause notice supplying a copy of the report of the Vigilance Officer to the candidate. The Supreme Court has also said that in case candidate seeks for opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim.
13.In the present case, as it is evident, No. such procedure has been followed. Here in the present case, the Vigilance Officer without giving any opportunity of hearing to any of the Petitioners, has straightway come to the conclusion based upon some inquiry that the Caste Certificates, which were issued in favour of each of the Petitioners are false. Since the Vigilance Officer gave the report in this behalf, Respondent No. 1 based on the said report, ordered cancellation of the admission from the respective colleges.
14. We are of the view that serious prejudice is caused to the Petitioners by adopting such a high-handed procedure. When the Supreme Court has very clearly laid down the entire procedure in this regard, the Authorities concerned were obliged to follow the guidelines given by the Apex Court in the case of Kumari Madhuri Patil and Anr. (Supra). It appears that in flagrant disregard of the judgment of the Supreme Court, a very high-handed action has been taken in the present case.
15. We are of the view that the impugned orders challenged in the respective petitions deserves to be quashed and set aside and the entire matter needs to be ordered to be remitted to the Respondents for fresh considerations after giving reasonable opportunity of hearing to each of the Petitioners.
16. We dispose of all the three petitions by issuing appropriate directions as under:
(i) The Vigilance Officer shall supply a copy of the inquiry report to each of the Petitioners on the basis of which the Vigilance Officer has come to the conclusion that the Caste Certificates are false and bogus;
(ii) The Vigilance Officer, Tribal Department, Godhra is directed to place all the three Caste Certificates of the respective Petitioners before the Scrutiny Committee constituted by the State Government. The Scrutiny Committee shall give an opportunity of hearing to the Petitioners in support of their claim. The Committee shall also give reasonable opportunity to the parents/guardians of the Petitioners herein to adduce all the evidence in support of their claim. The Committee shall inform the Petitioners and their parents/guardians well in advance about the date and time of hearing to enable the Petitioners and the parents/guardians of the Petitioners to remain present with the necessary evidence to put forward their claims as regards their respective caste;
(iii) The Scrutiny Committee shall independently inquire as regards the genuineness of the Caste Certificates without being influenced in any manner by any report prepared by the Vigilance Officer;
(iv) The Scrutiny Committee constituted by the State Government shall expeditiously complete the inquiry within a period of two months and inform the Petitioners and parents/guardians about the conclusion of the proceedings;
In above view of the matter, each of the petitions succeed. The impugned orders passed by Respondent No. 1 cancelling the admission from the respective colleges is hereby quashed and set aside. The Petitioners shall be permitted to continue with their studies in the respective colleges till the final conclusion of the proceedings, which the Scrutiny Committee shall undertake for the purpose of ascertaining the genuineness of the Caste Certificates. All the three writ petitions are disposed of accordingly with No. order as to costs.
