B.P. Dharmadhikari, J.—By this petition filed under Articles 226 and 227 of the Constitution of India, petitioner questions the order dated 21.10.2016 passed by the Caste Scrutiny Committee, invalidating the caste certificate dated 20.01.2012, and rejecting his claim towards Lohar "V.J. (B)". When hearing of this matter was going on, Writ Petition Nos. 538 and 2009 of 2016 also expedited by the Hon''ble Supreme Court, came to our notice and were required to be heard. Contentions raised therein also had bearing on findings to be recorded here and hence, we thought it proper to have the benefit of hearing another Senior Advocate and other team of Advocates before proceedings to deliver this judgment. We mention that our findings on scheme of Rule 17 of 2012 Rules below are mostly due to assistance we got in all these matters. Hearing in Writ Petition No. 538/ 2016 commenced on 30.1.2017 and it has been closed for judgment on 10.02.2017.
2. Petitioner was earlier given validity by the Scrutiny Committee on 20.01.2012 vide Certificate No. 1886. Respondent no.2 in the present matter sought cancellation of that validity, but, respondent no.1 Committee rejected that application on 26.08.2013. It held that it had no power to review the order granting caste validity. Respondent no.2 then approached this Court in Writ Petition No. 4796/2013 against that order. On 08.04.2015, this Court by a speaking order restored the application moved by respondent no.2 back to the file of respondent no.1. The Committee was directed to extend opportunity of hearing to present petitioner, as also complainant/respondent no.2, and to decide the controversy as per Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, (Act No. 23 of 2001) (hereinafter referred to as "the Act of 2001" for short). Petitioner approached the Hon''ble Supreme Court in Special Leave Petition No. 15211/2015. The Hon''ble Supreme Court on 05.08.2016, quashed and set aside the validity given to petitioner as also order of Scrutiny Committee dated 26.08.2013, and directed respondent no.1 Committee to take decision on petitioners caste claim within a period of 6 weeks. The Committee thereafter has proceeded further to complete the verification and impugned order came to be passed on 21.10.2016.
3. The Hon''ble Supreme Court had protected tenure of the petitioner as an elected Corporator during the pendency of the fresh proceedings before the Scrutiny Committee. In this Writ Petition that protection was again continued. These developments and subsequent events up to closure of matter for delivery of judgment appear in our order dated 03.02.2017,passed in this petition. We find it appropriate to reproduce the same here.
"1. The Hon�ble Apex Court vide its judgment, dated 5th August 2016, delivered in Civil Appeal No.7311-7312 both of 2016, while disposing of challenge raised by present petitioner took note of the fact that petitioner�s tenure as elected Corporator was to expire in January, 2017. Therefore, though order of Scrutiny Committee giving him caste validity was set aside, status quo was granted and his position as Corporator was protected. While doing so, Scrutiny Committee was directed to complete the proceedings before it within six weeks from the date of production of copy of Supreme Court judgment before it and thereafter the High Court was expected to dispose of Writ Petition in next four weeks. Now, at this stage, it is informed that this time has been extended by Hon''ble Apex Court by two more months. Copy of order extending time is not made available to us till now.
2. Scrutiny Committee has invalidated caste claim and there is dispute about the order Annexure "A"produced before us, as the impugned order mentions date of decision as 15.10.2016 with outward number dated 21.10.2016.
3. The Writ Petition was filed before this Court on 26th October 2016 and this court granted ad interim relief in terms of prayer (iii), that is, protected status of petitioner as Corporator. The matter was then listed on 18.11.2016, 21.11.2016, 28.11.2016, 16.12.2016, 21.12.2016, but could not be heard. Thus, period of four weeks initially expired in November,2016. If the period is extended, the extended time may have expired some time in last week of February, 2017.
4. The matter came before this Bench for first time on 4.1.2017. When matter was called out petitioner sought time to place a rejoinder on record and learned A.G.P. also sought time to file reply affidavit in connected Writ Petition i.e. W.P.No.6450/2016. Adv. Khandewale appearing for respondent no.2 opposed the adjournment, but only pointed out that matter was expedited by Apex Court.After some hearing, we found that perusal of records of Scrutiny Committee was essential. We were informed that records were made earlier made to this Court, but were sent back. The learned A.G.P. therefore sought time of two weeks� to produce these records. We, therefore, adjourned the matter to 18.1.2017.
5. On 18.1.2017 records were available and respective counsel for parties sought time of one week to assist the Court. The request was granted. Again, the fact that matter was made time bound and period had expired or was expiring, was not brought to the notice of this Court, either by any of the learned counsel or by the Registry of this Court. Thereafter, matter was listed on 27.1.2017 and as learned senior Advocate appearing for petitioner was not available, the same was adjourned to 31.1.2017 at the request of petitioner. The matter was not listed on 31.1.2017 and therefore, petitioner got it circulated for 1st February, 2017. On 1st February, 2017 arguments started and we have concluded arguments today at about 4.45 p.m.
6. Contentions raised by petitioner were not specifically pleaded and, therefore, learned A.G.P. had sought time to assist the Court, yesterday. Our attention was not drawn to any legal provisions. As the day was over, we granted that request and matter was taken up today. Today, arguments are brought to an end by us. We find that either petitioner nor State has effectively assisted the Court in the matter.
7. hence, we declared that we are closing the petition for delivery of judgment.
8. Counsel for petitioner has invited our attention to Civil Application No.229/2017 filed in the Court on 25.1.2017. He states that today i.e. 3rd February 2017, is the last date for filing of nomination papers and petitioner accordingly has filed nomination paper along with photo copy of the caste certificate and caste validity certificate, yesterday itself. He is seeking interim orders i.e. direction to Returning Officer to accept that nomination paper and to process it further. Request is being opposed by respondents.
9. We find that in the wake of express orders of Hon�ble Apex Court and the object behind prescribing time limit therein as also the orders passed later by this Court on 27th October 2016, the petitioner could not have used the cancelled caste certificate as he has no validity certificate after judgment of Hon�ble Apex Court.
10. The facts mentioned above, show a roving effort made by petitioner to somehow obtain an order to enable him to contest the election. During hearing we have, on more than one occasion, observed that respondents were killing time.
11. In these facts, we reject the Civil Application.
12. Writ Petition No. 6649/2016 is closed for judgment."
4. We have heard Shri Anil Mardikar, learned Senior Counsel with Shri Vaishnav, learned Counsel for Petitioner, Mrs. K.S. Joshi, learned Asstt. Govt. Pleader for Respondent No.1 Scrutiny Committee, Shri Gawande, learned Counsel for Respondent No.2 - Complainant, and Shri J.B. Kasat, learned counsel for Respondent No.3 - Municipal Commissioner.
5. The contention in short of learned Senior Counsel is, before granting petitioner validity on 20.01.2012, the Scrutiny Committee had before it a vigilance report dated 16.01.2012, which found nothing wrong with the caste claim of petitioner. On 14.02.2012, another vigilance report was received by it, and it supported validity given to petitioner on 20.01.2012. After the matter was sent back by the Hon''ble Supreme Court, on 17.09.2016, a vigilance report which can be said to be adverse to petitioner, was received. The last vigilance report also annexes with it earlier two vigilance reports. This vigilance report brings on record some adverse material, and that material has not been appropriately brought on record by the Scrutiny Committee. The contents thereof are also not correct. In that situation, the Scrutiny Committee has itself investigated into that evidence and after calling for the original records, used it as evidence without any opportunity to petitioner. The learned Senior Counsel has placed reliance upon judgment of Hon''ble Supreme Court reported at 2011 (6) All MR 929 (Anand v. Committee for Scrutiny and Verification of Tribe Claims and others), particularly paragraph no.19 in support of this contention. He invites our attention to reply submitted to that show cause notice to urge that there opportunity to cross examine was also claimed.
6. He has taken up through the impugned order to show how the Committee has without any opportunity to petitioner recorded findings of facts. He submits that though documents were old, it came from proper custody and therefore, the provision under Section 90 of the Evidence Act ought to have been applied to it. The Scrutiny Committee has for the first time arrived at certain findings which are unsustainable.
7. The petitioner in Writ Petition No. 6450 of 2016 Abdul Rafique Abdul Razak is relative of Sk. Hamid Sk. Hanif on paternal side. Their caste claims are verified together by the Scrutiny Committee on the strength of same documents and by separate but, identical orders. Respective Counsel agree that fate of Writ Petition No. 6449 of 2016 automatically decides Writ Petition No. 6450 of 2016. They have not advanced any arguments in Writ Petition No. 6450 of 2016. We find that impugned order in both these writ petitions is identical.
8. According to him when there was no evidence to demonstrate that petitioner could have forged those documents or played any fraud, the findings are liable to be set aside. He further states that about a document in ''Mody'' script or language, petitioner has pointed out that its translation was to be submitted by the government approved hand writing expert Shri Umathe, who had agreed to submit necessary report by 08.10.2016. Learned Senior Counsel points out that though document was in mody language, signatures upon it by ancestors of petitioners were in Urdu and having bearing on the issue. The contents of those signatures were translated by approved Urdu translator Shri Sami Ullah and that translation was made available to the committee.
9. He has also commented upon various findings of the Scrutiny Committee to urge that as all old entries in kotwal register may not have been taken on one and same day, then ink or handwriting is bound to vary, that by itself therefore, cannot be a ground to discard old documents.
10. He further submits that the documents in relation to which inference of tampering is drawn, are produced by the complainant / respondent no.2 on 17.09.2016 after orders of Hon''ble Supreme Court. These documents were never supplied to vigilance cell and hence, veracity thereof was never examined by the scrutiny Committee. The vigilance report supplied to the petitioner is not on these documents. When on 06.10.2016, Scrutiny Committee for the first time looked into those documents, petitioner was not aware that the originals would be examined by the Scrutiny Committee or purpose of perusal of original documents. He states that in this situation, on 06.10.2016, various original documents were produced and the same were allowed to be looked into. After this brief inspection, they were asked to offer their submission orally on those documents. Thereafter, the matter was adjourned to 07.10.2016 for final arguments. Thus, findings of the Committee in relation to these original documents or impact of perusal of original documents already on record before the Scrutiny Committee, was not known to petitioner. He therefore, did not get necessary opportunity as contemplated by Rule 17[11] read with Form No.25 of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Rules, 2012 (hereinafter referred to as "the 2012 Rules" for short). He contends that procedure followed by the Scrutiny Committee is contrary to the 2001 Act or 2012 Rules. It violates principles of natural justice. He seeks support from judgment reported at 2016 (3) All MR 717 (Lawrence Salvador D''souza v. The State of Maharashtra and others) and 2014 (3) Mh.L.J. 73 Nahidabano Ferozkhan Pathan v. Divisional Commissioner and others.
11. He has invited our attention to roznama [order sheet] recorded by the Scrutiny Committee on 15.10.2016 to urge that by a cryptic unreasoned order, caste certificate and validity given to petitioner was cancelled by the Committee. That order sheet does not show that any separate order with elaborate reasons was to be passed subsequently. The order as recorded in order sheet dated 15.10.2016, therefore is only order within the forecorners of law, later detailed order dated 21.10.2016 served upon the petitioner cannot be looked into at all. He has taken us through provisions of Rule 18 of the 2012 Rules to buttress this submission.
12. Learned A.G.P. submits that orders of this Court in Writ Petition did not quash and set aside the validity given to petitioner on 20.01.2012, or the order of Scrutiny Committee dated 26.08.2013. In Appeal filed by the present petitioner, the Hon''ble Supreme Court has quashed this validity and order, and caste claim was directed to be decided within a period of 6 weeks. Hence, fresh look into the matter became necessary. Accordingly fresh vigilance report was called for on 17.09.2016 and on its strength notice dated 23.09.2016 in Form No.25 was served upon petitioner. This notice contains findings of the Scrutiny Committee on vigilance report. That report was adverse to petitioner. The petitioner replied thereafter and that reply has been considered by the Scrutiny Committed while adjudicating the caste claim.
13. Our attention is invited to Section 8 of the 2001 Act to urge that unequivocally burden is cast upon petitioner to prove his caste claim. Petitioner never discharged that burden and remained happy by only attacking adverse vigilance cell report. He did not make any efforts to enter witness box or examine any witness in support of his caste claim. He only wanted to cross examine the authorities from whose custody records were produced. She submits that as petitioner does not discharge that burden, Scrutiny Committee could have then and there dismissed the caste claim. However, here the Scrutiny Committee has proceeded further and gave opportunity to petitioner as also to complainant to peruse original documents and applied its own mind to those documents and then has recorded its findings for invalidating the caste claim. This opportunity is apparent from perusal of ordersheet and also from assertions in paragraph no.3 of his rejoinder affidavit filed before this Court by the petitioner. She points out that perusal of original registers revealed that blank spaces therein were used to add entries in favour of petitioner. Impugned order is read out to explain as to how such documents are looked into in depth by the Scrutiny Committee. She reiterates that though all this was not necessary; in the light of directions of the Hon''ble Supreme Court, the Scrutiny Committee thought it appropriate not to leave any lacunae.
14. She submits that petitioner did not produce original of sale deed dated 05.04.1927, and only insisted for sending the documents to handwriting expert when translation was necessary. The alleged signature of witness in Urdu does not exist in original index records with Sub-Registrar, Anjangaon. Similarly, no translation of entire mody sale deed dated 20.02.1911 was supplied and again even in relation to that documents and entry, petitioner continue to insist that documents should be sent to handwriting and finger print expert. Committee therefore has rightly rejected those documents. She has taken us through relevant records of Scrutiny Committee to show how interpolation is apparent in relation to entries and also in relation to registers. She states that as these documents have been considered in detail, and their enlarged photographs were also obtained to facilitate the process of application of mind, the findings of fact recorded by the Committee cannot be said to be erroneous or perverse.
15. Writ Petition does not contain any pleading about not forwarding documents of complainant to the vigilance cell and in impugned order all these documents are looked into. Petitioner never objected to use of documents produced by the complainant. Our attention is also invited to pleadings in Writ Petition in this respect. Lastly, she points out that the vigilance report is only for assistance of the Scrutiny Committee and cannot be used as a substitute for adjudication by it.
16. Shri Gawande, learned Counsel appearing for the complainant states that office of the Collector has after noticing interpolation, passed an order. Certified copy of document no.16 show birth of male child to Sk. Rahim Sk. Gotu on 21.09.1942, submitted by petitioner, is quashed by the Collector by a speaking order. He relies upon the observations contained in paragraph no.7.10 of the impugned order for this purpose.
17. We find that the fact that petitioner was earlier given a validity. Perusal of vigilance report dated 16.01.2012 reveals that the Vigilance Authorities then had enquired with petitioner, looked into certificate dated 29.01.1951 of Sk. Gulab Sk. Gotu, containing entry of caste as ''Lohar'' at City Kotwali Akola and birth entry dated 21.09.1942 mentioned supra. The concern Police Inspector has mentioned that along with P.S.I. Kharat, he attended office of the Collector, Akola and inspected original records. Entries were found correct. He has then mentioned an entry dated 14.05.1964 in relation to Abdul Razak Sk. Rahim where caste was mentioned as Lohar. When original register was verified, entry appeared to be dated 17.05.1964 and 14.05.1964, but, there was difference in handwriting and ink. Then he has pointed out the home enquiry. Thus, except for mentioning whatever he could notice, this report does not contain any other finding.
18. Incharge of records in the office of Collector, Akola has written to the Scrutiny Committee on 23.01.2013 and pointed out that it was not possible to produce old birth and death records of 1942, 1951 and 1964, as there was possibility of pages being broken, torn or destroyed in case of being carried. Committee was therefore, requested to send its representative for perusal thereof in record room itself. It appears that thereafter Police Inspector N.R. Mankari of Vigilance Cell examined the documents on 13.02.2012 in the office of Collector. Documents looked into are dated 05.05.1938 and 09.09.1938 of Mouza Manzarpura, Achalpur City. These documents do not mention any caste. He also mentions that apart from these two documents, entry dated 03.12.1970 of death of Sk. Gulab Sk. Gotu was looked into by attending office of Achalpur Municipal Council. These documents also do not mention any caste.
19. Shri Mankari, P.I. thereafter has looked into the school records of Abdul Razak dated 18.06.1952; Shri Sk. Hamid Sk. Hanif dated 01.07.1975 and Sk. Mohd. Hanif Sk. Gulab dated 07.04.1945, for that he visited Municipal Urdu School at Manzarpura, Achalpur. The entries were in Urdu language and Headmaster of that School translated it into Marathi and confirmed correctness of documents with said P.I. In these documents, caste is recorded as Muslim, Muslim and Musalman.
20. Police Inspector Shri Mankari, has thereafter conducted home enquiry and persons examined by him have stated that caste of applicant was Lohar, while their business was weaving. These persons aged about 73 and 80 years have also disclosed that no relative of applicant [present petitioner] had migrated to Akola or Akot region.
21. Thus, this report on documents produced by the objector is after validity dated 20.01.2012, given to the petitioner. This validity is not in existence now, but, vigilance report of Shri Mankari is on documents tendered by the objector/respondent no.2. Scrutiny Committee then had not sought any report on documents of 1941, 1951 and 1964 tendered by the petitioner. The record keeper of Collector Office had requested the Committee on 23.01.2013 to depute its representative for inspecting these documents. Though police vigilance was conducted thereafter by visiting very same office, but, these documents of petitioner were not verified.
22. Perusal of vigilance report dated 16.01.2012 reveals that these documents were verified by P.I. Kamlakar Jadhav by paying visit to the office of the Collector. If that be the correct position, on 23.01.2013 the record keeper could not have send such a communication to the Scrutiny Committee.
23. Last vigilance report available on record is dated 17.09.2016. The Authority conducting the vigilance enquiry has annexed earlier two vigilance reports as part of this vigilance report.
24. In relation to 12.01.1942 entry of Sk. Karim Sk. Gotu, this report mentions that the concerned entry was at page no.152 and when on 17.09.2006 office of Collector at Akola was visited and original register was demanded, they were informed that record has been transferred to Tahsil Office at Akola. In Tahsil Office, 1942 entries were found at page no.151 and 153 of the register. While page no.152 was blank. Thereafter it speaks of entry dated 07.02.1930 about Chotibi Sk. Gotu and points out that there was apparent difference in ink and size of letters. Other entries were found to have been made in different manner. It also speaks of entry dated 14.01.1933 of Sk. Kalu Sk. Gotu. It reveals that in original kotwal book, ink appeared to be ''blue'' and hand writing was different and not as per other entries on that page.
25. While examining revenue records, it states that "mody" documents dated 20.02.1911 could not be read and examined. In sale deed dated 05.04.1927 entry of caste was not there, or it could not be deciphered. In School records on 01.07.1975, caste of Sk. Hamid Sk. Hanif was recorded to as Muslim, while on 07.04.1945, caste of Mohd. Hanif Sk. Gulab was found to be recorded as Musalman. During home inquiry, birth entry of Sk. Karim Sk. Gotu was looked into. The Committee found that though entry revealed that ancestors of petitioner resided at Akola, there was no such entry in record of Tahsil office at Akola. Hence no home enquiry was conducted at Akola. The Committee then points out the earlier enquiry made by Shri Mankari with Sk. Haimd (73 years) and Sk. Musa (80 years), in this respect.
26. Show cause notice dated 23.09.2016, thereafter shortly mentions these findings and calls upon petitioner to discharge burden upon it as per Section 8 of the 2001 Act. Here it needs to be noted that the last report of vigilance cell dated 17.09.2016 and earlier report dated 14.02.2012, do not support petitioner at all. Petitioner got copies thereof. He was aware that the Scrutiny Committee was accepting those findings.
27. His reply to Committee after this notice in Form No.25, does not in any way seek an opportunity to lead evidence. He has only sought opportunity to cross examine concerned authorities and pointed out contradictions in earlier vigilance report and later vigilance report. He has also attempted to explain difference in ink or difference in hand writing and claimed opportunity to examine documents and to cross examine concerned officers. Thus, in this reply he no where offers to lead any evidence in support of his caste claim. Entire emphasis in reply is on incorrectness or inconsistency in various vigilance reports.
28. Scrutiny Committee has mentioned documents produced by respondent no.2 / complainant in paragraph no.2. After these 26 documents, it has mentioned the 14 documents submitted by the present petitioner. Thereafter it has proceeded to narrate arguments of respective counsel. Counsel for the complainant addressed Scrutiny Committee first and thereafter counsel for Petitioner has made his submissions.
29. In paragraph no.7, the Scrutiny Committee has recorded its findings on 26 documents made available by the complainant. Perusal of this order reveals that original register has been looked into property by the Scrutiny Committee and thereafter it has drawn its inferences. In paragraph no.7.6 it has considered register containing entry dated 29.05.1964, showing birth of son of Sk. Hanif Sk. Gulab. It has found that there were total 140 entries and entry nos. 138, 139 and 140 at page no.55 were in different handwriting and different ink. It has found that these three entries appear to be apparently different in handwriting and ink, as also medium used for writing when compared with entry no.137 also taken on 29.05.1964. It has perused earlier and later entries on page nos. 47 and 64 and again reached a finding that entries at Sr. Nos.138 and 140 were blank and entries have been inserted utilizing the space left in the register. In paragraph no.7.7, it has looked into entry dated 29.01.1951 about a son born to Sk. Gulab Sk. Gotu. It has found that on page no.73, last entry was dated 29th January, and thereafter total of all entries made in that month was written and that month was closed. In space left blank after this, four entries were added. Again it has noted difference in ink, handwriting and manner of writing. It has then noted that transfer certificate of Sk. Hamid Sk. Hanif mentions caste as Muslim, that transfer certificate of Mohd. Hanif Sk. Gulab mention caste as Musalman. It has then looked into report of Sub Divisional Officer, Akola dated 05.08.1915 stating that no entry of a son born to Sk. Gulab Sk. Gotu was available with office of Collector, Akola. S.D.O. has also reported that there was apparent difference in handwriting and all entries on page no.51 in the register were added later on. Register was for the year 1941, and at its page no.51, entries of 1942 appeared. The said page was torn from some other register and added in 1941 register. Committee has also taken note of the fact that a F.I.R. was also lodged in this respect. These observations about tampering, interpolation appear in paragraph nos. 7.10 to 7.13. In paragraph no.7.16, documents showing entry of a son born to Sk. Rahim Sk. Gotu on 21.09.1942 is looked into. It has accepted that page no.51 appeared to be apparent addition by way of interpolation and refused to rely upon it. On document nos. 23, 24 and 25 findings of the Committee appear in paragraph nos. 7.23, 7.24 and 7.25. These findings show that caste was not recorded as Lohar in these documents and ancestors of petitioner resided at Manzurpura. About document dated 16.05.1964, in relation to Ab. Razak Sk. Rahim, the Committee accepted that no such record was available with Akola Municipal Corporation.
30. In paragraph no.8 it has looked into documents furnished by petitioner. Document no.6 furnished by petitioner is looked into by the Committee in paragraph no.7.7, as said document was demonstrated to be interpolated, by the complainant. In paragraph no. 8.6, it has looked into document showing death of Sk. Kallu on 14.01.1933. Original kotwal book revealed that said entry was taken in different hand writing and different ink. It has also found, upon perusal of register that interpolation was apparent because in birth entries regularly taken, the space in column meant for recording death was left blank consistently. However, that was not the position in relation to entry in dispute. The space which should have been left blank was used and difference in handwriting and ink and medium/instrument used for writing was apparent. In paragraph no.8.7, it has looked into the death entry of Chotibi Sk. Gotu on 07.10.1930. Its observations even in relation to this register and entry are identical. Document no.12 produced by petitioner shows that a son was born to Sk. Karim Sk. Gotu on 10.11.1942 at Mouza Shiloda. Vigilance reported that page no.151 contain entries of 1942, while page no.152 was blank. Scrutiny Committee found error in this report submitted by vigilance. It called for correct records of Mouza Shiloda and found that said entry appeared on page no.152 at Sr. No.57, but, ink and handwriting of said entry do not match with entry nos. 26 and 28. This shows that the Committee has applied its mind impartially and independently.
31. Document no.13 produced by the petitioner is Sale deed dated 05.04.1927. According to petitioner, last witness upon it is Sk. Gotu Sk. Mannu Lohar. The translation accordingly submitted in Marathi by Dr. Mohd. Sami Ullah. Book no.1 (Index) maintained by office of Subregistrar in relation to this document was sent for. That document mentioned that there was only two witnesses on original deed and none of them was muslim. Petitioner had submitted a photocopy thereof to the Scrutiny Committee. Committee therefore, asked him to produce original, but, he avoided to produce it. These findings therefore, show that the petitioner had not bothered to produce original documents to substantiate his case that there was a third witness on that sale deed or in description of said witness Sk. Gotu Sk. Mannu word "Lohar" was used.
32. Document no.14 looked into by the Committee is sale deed in "mody" language dated 20.02.1911. One Sk. Rahim Lohar is shown to have signed in Urdu on it, as a witness. This translation has been done by Dr. Mohd, Samiullah. The records of index register from office of Subregistrar were called for, but, said records were in "mody" language. Petitioner was called upon to supply its translation, but, petitioner did not make it available, on the contrary he insisted for obtaining report of handwriting expert or finger print expert.
33. In this light after perusal of these documents, the committee has drawn its conclusion in paragraph no.9 of the impugned order and onwards. It has found that elder/old relatives have expressly stated that family of petitioner resided at Manzurpura, and they never migrated to Akola or Akot. All old entires in revenue records and school records, lend credence to their assertion. No entry of any family member at Akola was found though a document to that effect was produced by the petitioner. With the result, the document about Akola became doubtful. In the light of this material, the Committee has invalidated the caste claim of petitioner.
34. Relevant rules in 2012 Rules read :
"Rule 12. Constitution of Vigilance Cell:
(1) There shall be Vigilance Cell to assist each Scrutiny Committee in conducting the field inquiry under rule
17. The Vigilance Cell shall consist of :-
(i) Deputy Superintendent of Police or equivalent''
(ii) Police Inspectors;
(iii) Police Constables to assist the Police Inspectors.
(2) Jurisdiction of the Vigilance Cell shall be subject to geographical jurisdiction of concerned Scrutiny Committee, for all purpose, including domestic inquiry and verification of authenticity of documents: Provided that, in appropriate case, if Scrutiny Committee feels, it may solicit a report of Vigilance Inquiry, from any other concerned Scrutiny Committee.
(3) Vigilance Cell shall work under the control and supervision of concerned Caste Scrutiny Committee.
"Rule 13 : Report of Vigilance Cell and Issues to be dealt with
(1) Vigilance Cell Officer(s) shall submit report upon investigating into the Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category claim, referred to it..
(a) by visiting permanent place of residence and conducting domestic inquiry ; or/ and
(b) by recording statements of respected and responsible persons from concerned area, including representatives of Local Self Government, Police Patil, etc; or
(c) by collecting information, as part of recording statement(s), as regards to name, age, educational qualification, occupation, existing place of residence and information regarding properties (existing and disposed of) of family members of applicant of Claimant; or
(d) by collecting information including the sociological, anthropological and ethnological (anthropological moorings and ethnological kinship), genetical traits of the Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category, if any; or
(e) by personally visiting Office(s) of Competent Authority or revenue or school or other offices.
(2) Notwithstanding anything contained in any provision of these rules,
(a) the Vigilance Cell shall not record concluding remark or opinion, since vigilance inquiry is meant for internal assistance to the Scrutiny Committee and adjudication of Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category status is exclusive domain of the Scrutiny Committee;
(b) finding recorded and opinion expressed, if any, by the Vigilance Officer shall not be binding on Scrutiny Committee nor could be used as evidence, in support of Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimulta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category claim; Rule 17: Procedure, of Scrutiny Committee:-
(1) On receipt of application, the Scrutiny Committee shall ensure that the application and the information supplied therewith is complete in all respects and to carry out close scrutiny of the application.
(2) Notwithstanding anything contained in these rules, the claimant or applicant or complainant shall be personally responsible for removal of objections raised by Scrutiny Committee, if any, within two weeks or within such extended period, which shall not be more than six weeks, failing which the claim or application or complaint shall be disposed of, by appreciating available records and such decision may be communicated to the applicant by the Scrutiny Committee.
(3) The incomplete application may be rejected by recording reasons.
(4) Notwithstanding anything contained in these rules, it will be the sole responsibility of the claimant or applicant to attend on the dates of hearing, either personally or through duty authorised representatives.
(5) The Roznama of the Scrutiny Committee shall be self evident as to what transpired on a particular day and it shall be signed by all the members of the Scrutiny Committee.
(6) If Scrutiny Committee, upon appreciating the statement of applicant or claimant submitted in the form of Affidavit filed in consonance with Order 18 of Rule 4 of the Code of Civil Procedure, 1908, as well as other evidence and documents furnished along with any application or proposal is satisfied, about the genuineness of Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category claim the Scrutiny Committee shall forthwith issue Validity Certificate in FORM 20 without enquiry by vigilance cell.
(7) If Scrutiny Committee, upon appreciating the statement of applicant or claimant submitted in the form of Affidavit filed in consonance with Order 18 of Rule 4 of the Code of Civil Procedure, 1908, as well as other evidence and documents furnished along with any application or proposal, is of the opinion that the documents do not satisfy or conclusively prove the Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category claim, the Scrutiny Committee by mentioning the same in the Roznama, shall refer such case to the Vigilance Cell for carrying out suitable inquiry, as is deemed fit, by Scrutiny Committee. Provided that, finding recorded by the Vigilance Cell shall not be binding on Scrutiny Committee, as the vigilance inquiry is meant for internal assistance to the Scrutiny Committee. The Scrutiny Committee shall record its reasons for discarding the report of the Vigilance Cell.
(8) The Vigilance Cell shall complete the inquiry within six weeks, thereby making suitable inquiry, on all the issues or as specifically directed by the Scrutiny Committee;
(9) Vigilance Inquiry shall be made for respective territorial area of jurisdiction of concerned Scrutiny Committee;
(10) In case of those cases which are referred to Vigilance Cell, upon considering the report submitted by Vigilance Cell, if the Scrutiny Committee is satisfied about the genuineness of Scheduled Caste, Scheduled Caste converts to Buddhism, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category claim of claimant/applicant, it shall be lawful to decide the matter finally by its written decision, and forward the copy of decision and Validity Certificate in FORM24, to the concerned parties or authority, by preserving its scanned copy (in electronic form).
(11)(i) In case of those cases which are referred to Vigilance Cell upon considering the ''Report of Vigilance Cell'', if the Scrutiny Committee is not satisfied about the claim of the applicant, it shall call upon the applicant to prove his Caste claim, by discharging his burden, as contemplated under section 8 of the Act, by issuing a notice in FORM 25 coupled with copy of ''Report of Vigilance Inquiry''.
(ii) After issuance of notice/intimation, if applicant requests, by way of written application, for copies of vigilance inquiry report or any other documents or prays for adjournment, reasonable time for final hearing or for submitting written submission, it may be granted;
(iii) After affording an opportunity of hearing, Scrutiny Committee shall,
(a) on being satisfied regarding the genuineness of the Caste claim, decide the matter finally, upon appreciation of evidence, by its reasoned decision, i.e. decision of committee and issue Certificate of Validity in FORM 24; and forward the same to the concerned authorities within 30 days, by preserving its scanned copy (in electronic form);
(b) on being not satisfied about the genuineness of the claim and veracity of the Caste Certificate, it shall pass its decision, thereby canceling and confiscating the original Caste Certificate and invalidating the Caste or Tribe Claim of the applicant/claimant''
(c) upon invalidating of Caste or Tribe claim, the Caste Certificate under inquiry shall be stamped as "cancelled and confiscated" and forward the same along with copy of decision, to the Competent Authority and concerned parties, by preserving its scanned copy (in electronic form).
(d) after conclusion of the hearing of the case, the work of writing of the decision shall be assigned to one of its member by the Scrutiny Committee;
(e) in case of difference of opinion amongst the members of Committee, on the main order of majority of dissenting member shall write his separate order;
(f) The name of member of Committee to whom work of writing final order was assigned, shall be mentioned in the Roznama. Moreover, front page of final order shall disclose the date of the order.
(12) Notwithstanding anything contained in these rules, it is incumbent on the applicant to disclose all the true and correct information, including disclosure of adverse entries or material, failing which, it shall be lawful for the Scrutiny Committee to draw adverse inference.
(13) If the Scrutiny Committee finds and concludes that the report of Vigilance Cell is false or unrealistic, it shall record the reason in decision and direct appropriate action as contemplated under section 14, read with section 11 and 12 of the Act and also recommend Departmental inquiry against such Vigilance Officer: Provided that, an opportunity of being heard be granted to the concerned Vigilance Cell Officer prior to any direction for appropriate action. This, hearing shall be independent to adjudication of Caste or Tribe Claim.
18. Hearing of Scrutiny Committee - (1) The Scrutiny Committee Shall hold hearing at least once a week;
(2) All the three members shall be present at the hearing of the Scrutiny Committee; Provided that, in absence of other members of Committee, any other member shall give next date of hearing;
(3) The decision of Committee shall be by majority; Provided that, majority decision shall be communicated as decision of Scrutiny Committee, with judgment of all the assenting members along with separate judgment by dissenting member.
(4) The Certificate of Validity shall be signed by the Member Secretary.
(5) The Scrutiny Committee shall take its decision about the validity of Caste Certificate within a period of three months and in exceptional circumstances additional period of two months may be taken by the Scrutiny Committee."
35. In Nahidabano w/o. Ferozkhan Pathan v. Divisional Commissioner, Aurangabad & ors. (2013 (6) Bom.C,R, 458), the Division Bench of this Court (one of us B.P. Dharmadhikari, J is party to it) observes " After careful evaluation of the material on record, we find that the challenges on the ground of violation of Rule 17(11)(i) of the State Rules, absence of notice in form no 25 & the bias of the members of the Scrutiny Committee need to be considered together to avoid prolixity & reiteration. Breach of principles of natural justice is urged as the Scrutiny Committee did not issue the notice as required by Rule 17(11)(i) of the State Rules in form no. 25. Rule 17 lays down the procedure to be followed by the Scrutiny Committee. As per sub rule 10 of Rule 17, if after perusal of vigilance cell report, the Scrutiny Committee is satisfied about the genuineness of the caste claim, by its written decision, it can allow the caste claim finally & grant validity in form 24. If it is not so satisfied, as per sub rule 11, it has to call upon the claimant to prove his caste claim by discharging the burden put on him by Section 8 of Act 23 of 2001. The format of this notice is form 25. As per said proforma, the Scrutiny Committee has to mention its findings on caste claim, documents produced in support by claimant & on vigilance cell report. There is a space left blank & provided therefor in the proforma after the sentence" Following are the findings of the Committee". After the findings are enumerated, the next sentence reads" Till this stage this committee is not satisfied about your caste/claim, therefore,you are hereby informed accordingly." It then invites attention to Section 8 of the Act 23 of 2001 & claimant is given option to present the case personally or through Legal representative. He is also permitted to file the documents in support of his caste/claim. Report of vigilance cell is to be forwarded with this notice."
36. In Lawrence Salvador D''Souza v. State of Maharashtra through its Secretary Social Justice Department & ors., (2016) 3 All. M.R. 717 : (2015) 6 LJSoft 67 , the challenge was to the order invalidating the claim of belonging to the East Indian Christian Community and consequential order disqualifying the Petitioner as the Corporator. After vigilance cell submitted the second report no showcause notice was issued to the petitioner. This Court finds it obligatory for the scrutiny committee to grant an opportunity to the petitioner to show cause against the adverse vigilance report. Provisions of Rule 17(11) are held mandatory. As the fresh statement of the principal of the concerned school was considered by the vigilance cell, grant of an opportunity to the petitioner to cross examine that principal was felt necessary. The failure on the part of the scrutiny committee to issue a notice in form 25 before invalidating the claim of the petitioner vitiates the order of the scrutiny committee. Form25 makes a claimant aware of the reasons for the dissatisfaction of the committee about the caste claim. Impugned order of the Committee and the consequential order of the corporation disqualifying the petitioner was set aside and matter came to be remanded back.
37. In 2016 (12) LJSOFT 133 Smt. Ashvini Ramchandra Bhogam Alias Mrs. Ashvini Amer Ramane v. State of Maharashtra & ors , the Division Bench observes undoubtedly, the findings recorded by the Vigilance Cell are not binding on the Scrutiny Committee as Vigilance Cell inquiry is meant for internal assistance to the Scrutiny Committee nor can it be used as evidence in support of the claim. The detailed procedure provided by the Rules demonstrates that the Vigilance Cell inquiry is not a mere formality but is meant to effectively assist the Committee in determining the caste claim. This is further substantiated by the requirement of the Rules for the Committee to give reasons before discarding the Vigilance Cell report.
38. In Saraswati Rajnikant Mayekar v. State of Maharashtra through its Secretary, Social Justice and Special Assistance Department & ors. ( 2016 (1) LJSOFT 20 : (2016) 1 Mah.L.J. 66) , this Court observes.
"7. The submission is also made that there is no dispute that the Vigilance Report supports the case of the Petitioner, referring to the Caste in question. After going through the order passed by the Divisional Caste Certificate Scrutiny Committee, we have also noted that no specific reasons are given to disregard the findings in support of the caste claim of the Petitioner. Apart from this, no opportunity as required under Rule 17(11)(i) and show cause notice was given to the Petitioner. This, in our view, is sufficient to interfere with order dated 30 July 2013 passed by the Divisional Caste Certificate Scrutiny Committee. As the impugned order so passed is in breach of mandate of the Rule and contrary to the judgments so referred above, we are not inclined to accept the contention of the learned counsel appearing for the Respondents that the Petitioner, after receipt of the Vigilance Report made submission in writing in support of the same and therefore, there was no question of giving the fresh show cause notice. Considering the scope and purpose and the object as contemplated in the Rules, specifically when there is Vigilance Report in favour of the Claimant, for taking any adverse decision and/or for any contrary view, it is necessary to issue show cause notice and to give opportunity to the Claimant in whose favour Vigilance Report is placed on record. Therefore, admittedly, as no show cause notice and/or the opportunity so contemplated were given, we are inclined to allow this Petition and pass the consequential order in the following terms"
39. In Shailesh s/o Krishnarao Kohad v. Scheduled Tribe Caste Certificate Scrutiny Committee & ors. (2010 (4) LJSOFT 147(2010) 1 Mah.L.J. 790), this Court (one of us B.P. Dharmadhikari, J is party to it), has observed -
"23. Learned Senior Counsel has relied upon judgment of Hon''ble Apex Court reported in the case of State of Kerala v. K.T. Shadule Grocery Dealer Etc.(supra). Facts in said judgment clearly show that the issue there pertained to best judgment assessment under the Sales Tax Act, after the returns filed by the assessee were found to be incorrect and incomplete. The returns filed by the assessee were being disbelieved because of books of accounts of a third party by name Haji Usman Kutti. Books of accounts of said Haji revealed certain transfers effected by the assessee in his favour and those transactions were not accounted for in books of accounts of assessee. The assessee had applied to the Sales Tax Officer for opportunity to cross examine said Haji Usman Kutti. But that was denied to him. This controversy is considered by the Hon''ble Apex Court and provisions of Section 17(3) are noticed to conclude that the Sales Tax Officer has to give reasonable opportunity before making best judgment assessment. The said opportunity is contemplated at two stages, as per the said provision. The Hon''ble Apex Court holds that first stage was reaching of satisfaction by the Sales Tax Officer that return is incorrect or incomplete and the second stage was while making best judgment assessment. In this respect, when returns are being disbelieved on the basis of accounts of a third party, the demand of cross examination has been accepted by the Hon''ble Apex Court. In the scheme of the Act, it is clear that burden is upon the petitioner and we have already noted above his conduct and approach in the matter. Only by showing that documents procured by the Vigilance Cell were incorrect or then by cross examining Shri Sanjay Kohad, his claim as belonging to Halba Scheduled Tribe could not have been granted. The petitioner never assisted the Scrutiny Committee and did not bring on record any material to justify his demand for cross examination. We do not find anything on record to show that the Scrutiny Committee at any time denied him that opportunity.
The Scrutiny Committee after noticing the conduct of the petitioner has only commented that he never remained present with Advocate to conduct such cross examination. Reliance upon judgment in the case of M/s. Bareilly Electricity Supply Co. v. The Workmen and others (supra) (at page no.629) only shows that the principles of natural justice does not mean that what is not an evidence can be acted upon, but it implies that no material which is not subjected to cross examination by a party against whom it is sought to be relied upon, can be acted upon. As we have already stated above, because of provisions of Section 8, basic burden was upon the petitioner and he failed to discharge it, the insistence upon opportunity for cross examination of headmaster from whom documents in relation to his grand father and three cousin, grandfather were procured was misconceived and unwarranted. Petitioner also did not bring on record any material to support his demand for cross examining Shri Sanjay Kohad. On the contrary, he only wanted to show some lacunae in the process of verification at the hands of the Vigilance Cell and capitalize on it. In these circumstances, we do not find that principles of natural justice have been violated by the Scrutiny Committee in the matter, as Scrutiny Committee has not rejected his prayer for cross examination. It is to be noted that such stage of cross examination by petitioner was never reached in the proceedings before the Scrutiny Committee."
40. Thus, prayer for grant of an opportunity to cross-examine by the claimant was considered and rejected by this Court in Shailesh s/o Krishnarao Kohad v. Scheduled Tribe Caste Certificate Scrutiny Committee & ors. (supra) in facts of that case. In Lawrence Salvador D''Souza v. State of Maharashtra (supra), the need of cross-examination was felt because of the statement of the principal recorded afresh by the vigilance cell. This fresh statement was considered by the vigilance cell only and the Scrutiny Committee also had not issued any notice in form 25. Thus the scheme of entire Rule 17 as such or the binding precedents on burden or on the cross-examination, was not required to be gone into. In Nandkishor S/o Bhayyaji Kinekar v. State of Maharashtra through its Secretary, Social Justice & Special Help Department & anr. (2009 (4) LJSOFT 126), the Division Bench of this Court has held that the burden to prove the caste/tribe claim is always on the person who claims to be belonging to a particular tribe, All that the petitioner there had done was to challenge the adverse report of Vigilance Cell and he did not take any steps to prove his claim. Petitioner made allegation that the School record is bogus but did not take care to produce any positive evidence to produce his own caste claim. It was held that the Petitioner failed to avail of the opportunity in spite of the repeated adjournments sought by him and invalidation of caste claim was proper. Adverse report of Vigilance Cell is the material collected by it which is furnished before the Scrutiny Committee which decides after considering the report and documents whether to accept the report or not. It holds that Petitioner''s insistence on calling the officers of the Vigilance Cell and or Research Officer etc. for cross examination is an effort in futility. This Court also states that when Committee decides to call upon the candidate and affords him the opportunity to prove his caste/tribe claim, the candidate has to prove his claim. In Bharat Gulabsing Thakur v. State of Maharashtra & ors. ( 2010 (9) LJSOFT 107( 2010)4 Mah.L.J. 458), this Court holds that the report of the vigilance cell attached to the scrutiny committee is to aid the scrutiny committee to arrive at the right conclusion and officers who constitute the vigilance cell cannot be made available for cross-examination to the applicant.
41. Few other judgments relied upon by the petitioner may be briefly mentioned here. In 2015(2) All MR 200 ( Madhuri Nitin Jadhav v. State of Maharashtra), the Division Bench of this Court does not consider a provision like Rule 17 of the 2012 Rules and states that adverse finding of the vigilance cell can not be used by the Scrutiny Committee without proper opportunity to the claimant. We find that after 2012 Rules such findings are not to be recorded by the vigilance cell and even if recorded, are of no value as thereafter such claimant gets full opportunity to discharge burden upon him as per Section 8 of Act 23 of 2001. In 2015 Mh.L.J. 100( Siddheshwara More v. Divisional Caste Certificate Scrutiny Committee), 2012 Rules with which we are concerned are not looked into. Thus, the legal status as such of the vigilance report under 2012 Rules did not fall for consideration there. In Anand v. Committee for scrutiny & verification of tribes claimsupra( 2011 (6) All MR 929 (SC)), the Hon''ble Supreme Court points out importance of preconstitution documents and need to give opportunity to the claimant, if those documents are found doubtful. Hon''ble Supreme Court also points out that it is not for the Scrutiny Committee to gather evidence to disprove the caste claim and it has to appreciate the material tendered by such claimant as burden is upon the claimant to prove it. 2003 Rules have been looked into in this judgment. Moreover, here the petitioner got full opportunity and there was a private complainant also opposing his caste claim. That complainant also produced certain old records to show that the caste of ancestor of the petitioner was never recorded as "lohar" therein. In (2009) 10 SCC 268 (Sayanna v. State Of Maharashtra & others), Hon''ble Supreme Court finds improper approach by the Scrutiny Committee overlooking the four old documents due to its finding that addition of word "lu" after the words "mannewar" was tampering. Hon''ble Supreme Court points out that it was not indicating an interpolation. This judgment does not lay down that the Scrutiny Committee or the Vigilance cell has to disprove the caste claim. Desh Raj v. Budh Raj( AIR 2008 SC 632) points out how thirty year old documents calls for application in view of Section 90 of the Evidence Act. Here the original documents were found interpolated and tampered with. The petitioner was given chance to discharge burden upon him by Section 8 of the Act no. 23 of 2001 which he refused. Scrutiny Committee has only verified the original documents after inspecting which the vigilance cell submitted its reports. The originals were perused in presence of all the parties and only to find out whether the vigilance cell did report rightly.
42. Section 8 of Act 23 of 2001 mandates that the claimant like petitioner must discharge burden and establish his caste claim. The Scrutiny Committee is not required to disprove his caste and has only to act as a catalyst to facilitate the process of verification of caste claim. 2012 Rules prescribe the due steps stage wise as part of that procedure. Thus, if the Scrutiny Committee is satisfied upon receipt of the caste claim itself for verification, it can issue validity without sending the papers to the vigilance cell. Thus such claimant has given genuine or indisputable documents in support of his caste claim like a court verdict or a validity earlier awarded duly to some blood relation. It can also do so, when the vigilance enquiry supports the claim, if it is satisfied with the correctness of such vigilance report. Thus, in either contingency, the elaborate procedure of leading evidence - documentary or parol, is obliterated. The scheme therefore appears to avoid rigmarole of a formal inquiry. Scrutiny Committee is empowered to award validity in genuine cases without any delay and at the earliest possible moment. Only when verification of validity through this short or summary procedure is ruled out, cumbersome procedure envisaged under Section 8 has been made inevitable. This time saving procedure in 2012 Rules is therefore complimentary to long drawn procedure under Section 8 of the Act. We may here briefly state the scheme for verification of caste certificate prescribed in 2012 Rules here for convenience :
(A) Finding recorded and opinion expressed, if any, by the Vigilance Officer are neither binding on Scrutiny Committee nor can be used as evidence, in support of the Claim.
(B) Rule 17(6) empowers the Scrutiny Committee to forthwith issue Validity without enquiry by vigilance cell, in appropriate matters.
(C) Other wise, it refers the claim to the vigilance cell under sub rule(7). Finding recorded by the Vigilance Cell is not binding on Scrutiny Committee, as the vigilance inquiry is for providing internal assistance to it but the Scrutiny Committee must record its reasons for discarding the report of the Vigilance Cell which is in favour of the claimant.
(D) Findings of the Scrutiny Committee in Form 25 are only for not accepting the vigilance report when it is in favour of the claimant.
(E) Even if the or When the said reports are against the claimant seeking the validity, reasons for accepting it or additional reasons therefor are required to be communicated. Claimant is not entitled to demonstrate that the such vigilance report is bad and it should have been in his favour.
(F) Similarly, merely because this vigilance report is against the claimant, the validity can not be denied to him. If after grant of opportunity to him in terms of Section 8 of the Act no. 23 of 2001, he succeeds in discharging that burden, validity certificate must be granted to him.
(G) The Scrutiny Committee has to itself appreciate all material and it can not, as an appellate or supervisory authority seat over the vigilance cell and resort to passive application of mind. Errors or mischief, if any, by such vigilance cell officers, therefore can not enure to the benefit of either the claimant like petitioner before us or the objector like the respondent no. 2.
(H) When such findings in Form 25 are communicated, the burden caste upon the claimant by Section 8 of Act no. 23 of 2001 springs into life. As such, he can summon all the witnesses in support of the documents with him or elderly persons to establish his caste claim. Mere conducting cross-examination and showing that the vigilance cell acted wrongly in submitting an adverse report or the Scrutiny Committee erred in discarding the favourable vigilance report, is not sufficient to prove the caste.
(I) Object of providing a vigilance inquiry is only to cut short the otherwise elaborate procedure in genuine cases. This summary procedure is possible, when the vigilance report reveals that the caste claim appears to be genuine. In that event also, if the Scrutiny Committee agrees with it, validity can be immediately issued. Otherwise, if records dissent, elaborate procedure needs to be adopted. It has then to fix the matter formally for claimants evidence in support of his caste claim.
(J) When obligation under Section 8 of 23 of 2001 Act springs into life and the claimant has to prove his caste, the vigilance report only remains a document on record of the proceedings not binding on anybody. Mere adverse report on his caste by the vigilance cell can not be used to deny validity without giving the claimant an opportunity to prove his case in terms of Section 8. If he does not use that opportunity, his caste claim can be rejected not because of adverse vigilance cell report but because of his failure to substantiate it.
(K) If at that stage, he leads proper evidence in support of his caste, the same may be validated.
43. In the light of these principles, we find that the Scrutiny Committee has not remained satisfied with perusal of original records looked into by the Vigilance Cell and recording of its own reasons for agreeing but has unearthed more facts for testing the sincerity of the vigilance cell. As it was agreeing with the vigilance report, it was not necessary for it to do so. It could have remained satisfied having called upon the petitioner to discharge burden cast upon him by Section 8. Petitioner could have entered the witness box and then summoned the requisite original records from various offices and attempted to prove genuineness in his caste. Objector also could have conducted his cross-examination or questioned the authenticity of records so produced. He also could have proved documents produced by him to rebut petitioner''s caste claim.
44. Here the petitioner was given the show cause notice in Form 25. It carried enough findings of the Scrutiny Committee to warn him that the registers and records pressed into service by him were prima facie doubtful. Burden placed by statute upon him was expressly mentioned and opportunity was given to him to lead evidence as also to take assistance of an advocate. Reports of the vigilance cell pointing out absence of records, interpolation or tampering were with him. The relationship relied upon or place of residence also becomes doubtful. But the petitioner who was already availing services of an competent advocate, instead of offering to lead evidence, only insisted on cross-examination of the authorities and offices issuing the documents relied upon by the vigilance cell to draw a report against him. He did not produce the original sale deed dated 5.4.1927 or did not care to supply true translation of the "mody" document dated 20.2.1911, though necessary. He remained content with attack on the vigilance reports. Scrutiny committee has found some mischief on part of vigilance cell and hence, has proceeded against the vigilance cell under Rule 17 (13) as can be seen in its ordersheet dated 17.10.2016. Obviously, it needed and thought it safe to peruse the original records on which the vigilance based its reports. It therefore has arrived at its own findings. In the process, on 6.10.2016, the original documents were seen and verified by the members of the Scrutiny committee in presence of the petitioner and his Counsel, as also objector-complainant and his counsel. They were also given full opportunity to meet or explain the same. Petitioner was allowed to send the documents to the handwriting expert and use the opinion of experts to substantiate the caste. He avoided to produce the original saledeed and also did not give translation of the "mody" document. He deliberately avoided to comply with the directions to that effect given by the scrutiny committee. No explanation therefor is offered by him either to this Court or to the Scrutiny Committee. Scrutiny Committee was not required and expected to call the original records and peruse it as the Petitioner did not discharge burden on him under Section 8 of the Act no. 23 of 2001. But as here the office of Collector also noticed some tampering and it felt necessary to take recourse to Rule 17(13) of 2012 Rules, it looked into those documents. This exercise was to enable it to take action against the vigilance cell. This exercise can not and does not result in any prejudice to the petitioner. It can not be said that the Scrutiny Committee has undertaken any exercise which it is not legally competent to do.
45. We also find that had he entered the witness box, the source of documents, source of information leading thereto, place of residence of his ancestors etc. then could have come on record and his bonafides would have become apparent. He was given due chance by the scrutiny committee to establish his bonafides. He and his advocate thought it better not to adduce the evidence or to produce the original or translation. Adverse inference needs to be drawn against him for this conduct. As noticed by us in our order dated 3.2.2017, his only object was to stick to the post as long as possible. In fact he also avoided final hearing in writ petition till it became absolutely necessary. Petition was argued at fag end of his tenure and even at that juncture, an attempt was made by him to contest next election.
46. Rule 17 when read with Rule 18 of the 2012 Rules, shows that the three member Scrutiny Committee, after concluding the hearing, has to assign the job of writing the order to one amongst them and name of such member to whom the responsibility is entrusted, is to be recorded in the ordersheet. If there is any disagreement, the majority view is to be written first and on it, the member in minority has to write his dissenting order. Thus, object behind this scheme is to see that all three members after holding a joint hearing, deliberate together. The officer with technical knowledge about such backward tribes or caste on it passes on his expertize and advises the other members on the Scrutiny Committee, to the best of his capacity on the issues like affinity, customs, traits etc. All members share their views on entire material and attempt to arrive at a joint decision i.e., a unanimous verdict. It is through this procedure only that job of writing a unanimous verdict or a majority order can be assigned to one of its member by the Scrutiny Committee. Joint exercise of caste verification implies mutual exchange between all three members of their views reached till then, impact of ideas or views of each of them on the others. Resultant correction in ones own views or moulding thereof is the idea of joint hearing and joint verification. If all three only sit together for hearing but then do not exchange their impressions with each other or then after conclusion of hearing, do not attempt to reach unanimity, object of constituting a three member Scrutiny Committee is lost. All three members delivering their orders separately without any deliberation with each other is like three presiding officers hearing the same controversy at three different places and delivering their individual judgments. Even if all three judgments so delivered happen to record same conclusions or result, still same do not become the judgment of the bench of the Scrutiny Committee as it lacks the advantage of joint exercise or joint labour. Such identical three separate orders can not become a unanimous order of the Scrutiny Committee. Such individualistic labour can not substitute the joint deliberative exercise mandated by the law. Chance of self correction inherent in joint exercise is a mandatory ingredient absent in exercise of passing the separate but, identical orders. Scheme seen in Rule 17 and 18 of 2012 Rules foresees a unanimous agreement beforehand ie before deciding to deliver a majority and minority verdict and it is to disagree, reached between all the three committee members. The procedure prescribed by the Rules guarantees a joint exercise by the sincere members with open mind, undertaken honestly to arrive at a unanimous verdict, if necessary after an attempt for resolving conflicts amongst themselves. Scrutiny Committee consists of three competent persons able to hear and decide jointly with open mind. Use of collective wisdom is a guarantee to an individual seeking caste validity by the Act no. 23 of 2001 and 2012 Rules, of a fair verification process, free of all prejudices as also of other human errors, to the extent legally possible. None of the Committee member can avoid to deliberate and refuse to honor this solemn obligation accepted by him while occupying the office.
47. Here that joint exercise is apparent from the application of mind perceived in the impugned order dated 21.10.2016. The first application of mind jointly by all the three members is explicit in the roznama or ordersheet dated 15.10.2016 wherein the gist of findings of the Scrutiny Committee with some reasons surface. In the impugned order dated 21.10.2016, more reasons are recorded which are in consonance with said ordersheet. Merely because a short reasoned order is reflected in the ordersheet on 15.10.2016 with no mention that a more detailed order was to follow, that by itself is not sufficient to vitiate the final order dated 21.10.2016. Petitioner nowhere states that only ordersheet dated 15.10.2016 was served upon him as an impugned order. On the contrary he has assailed order dated 21.10.2016 only in the instant writ petition. Hence, the technical objection raised by him at eleventh hour on the strength of ordersheet dated 15.10.2016 is misconceived and does not hold any water. It does not affect petitioner in any manner. Later notes in the ordersheet are only to initiate appropriate action against the vigilance officer for furnishing wrong report and it does not have bearing on the cause here. Petitioner has not alleged any malafides or prejudice. The Committee Members not conversant with the procedure have only committed an honest and inadvertent error by indicating the gist of its effective deliberations on 15.10.2016 which does not prejudice the merits of its exercise and said error deserves to be ignored in present matter.
48. With the result, We find no merit in any of the challenges as raised. Orders of the Scrutiny Committee dated 21.10.2016 invalidating caste claims of the respective Petitioners do not suffer from any jurisdictional error or perversity. Same are upheld Both the writ petitions are dismissed with costs of Rs. 5000/each payable by them to the Scrutiny Committee. Rule discharged accordingly.
