D.G. Karnik, J.@mdashRule, returnable forthwith in all the three petitions. The learned Counsel for respective respondents waive service. Taken up for final hearing by consent.
2. Some vacancies in the office of the respondent No. 3 were reserved for candidates belonging to the Scheduled Tribes. The petitioners, in all these petitions, made application for appointment to the posts reserved for the Scheduled Tribes claiming that they belonged to "Tokare Koli", which is a notified Scheduled Tribe. The petitioners produced the caste/tribe certificates obtained from the Tahsildar and Executive Magistrate, Jalgaon, between April, 1989 and July, 1989, purportedly bearing the signature of Shri Hemraj Hiraman Saraf, the then Executive Magistrate, Jalgaon.
3. The petitioners were interviewed, selected and appointed by the respondent No. 3 to the posts reserved for Scheduled Tribes on the basis of the said caste/tribe certificates. The learned Counsel for the petitioners was unable to give even the approximate date of appointment, but stated that they were confirmed in the year 1998 or thereabout.
4. As per the directions given by the Apex Court in the case of
"After considering all the documents, facts and in exercise of the powers vested in the Committee vide Govt. Resolutions quoted in the preamble at Sr. Nos. 1 to 3 above, the Scrutiny Committee has come to the conclusion that Shri Pandurang Dodhu Koli does not belong to Tokare Koli, Scheduled Tribe and as such his claim towards the same is held invalid. The Committee also come to the conclusion after confirmation by way of Police Vigilance enquiry that the Caste Certificate presented by the applicant for verification has not at all been issued by the competent authority but obtained from the unauthorised source other than the competent Executive Magistrate by illegal means hence the fake caste certificate bearing No. MAG/ER-268/89, dated 26-6-1989 presented by the applicant is hereby cancelled and confiscated.
Since the applicant Shri Pandurang Dodhu Koli is liable for legal criminal action for obtaining fake document by using the name and official Govt. Seal of the Executive Magistrate, Jalgaon by illegal and fraudulent means and, producing the same to the authority. In the light of the directives of the Hon''ble Supreme Court in the SLP No. 14767 of 94 Madhuri Patil v. State of Maharashtra and Ors. and in the light of Govt. instructions vide letter quoted in the preamble at Sr. No. 4 above, the Tahsildar and Executive Magistrate is directed to lodge prosecution against Shri Pandurang Dodhu Koli."
5. The operative part of the order of the Scrutiny Committee can be divided into three parts, which are :
(i) The petitioner does not belong to Tokare Koli - a scheduled tribe and his claim towards the same is invalid.
(ii) The Caste/Tribe Certificate presented by the petitioner was obtained from unauthorized source and fake and was, therefore, cancelled and confiscated.
(iii) The petitioner should be prosecuted for producing false and fake caste/tribe certificate.
6. Shri Barlinge, learned Counsel appearing for the petitioners submitted that the first part of the order passed by the Caste Scrutiny Committee was unwarranted and would affect the petitioners permanently and, therefore, should be quashed. He submitted that assuming that the caste/tribe certificates were fake or forged, that would not alter the caste/tribe of the petitioners and on that count the petitioners cannot cease to belong to that caste or tribe to which they belong. The Scrutiny Committee had not investigated the claim made by the petitioners that they belonged to a Tokare Koli Tribe but had omitted to go into it on the ground that the caste/tribe certificates were fake and forged. The finding of the Scrutiny Committee that the petitioners do not belong to Scheduled tribe was based merely on the fact that the caste/tribe certificates produced by the petitioners were fake and, therefore, that must be set aside. Reference was also made to the letter written by the respondent No. 3 to the respondent No. 2 which only required the respondent No. 2 to verify the caste/tribe Certificates and not to verify the caste/tribe claim of the petitioners. There is considerable force in this contention. The reference made to respondent No. 2 was only to verify the caste/tribe certificates. If the caste/tribe certificates were forged and fake, that would invalidate the caste/tribe certificates, but that would not change the caste or tribe of the petitioners. The petitioners would continue to belong to the caste/tribe to which they belong to and if, in law, they are entitled to apply for fresh caste/tribe certificate, they can do so and cannot be denied it for lifetime merely because the first caste/tribe certificate produced by them was not genuine, or was fake or forged. The petitioners undoubtedly must suffer the consequences of fake or forged caste/tribe certificates produced by them and if that results in a criminal conviction which disentitles them to future employment, that disqualification cannot be removed, but on that count their caste/tribe would not cease to be scheduled, if they belong to it. Let us take the case of a person who belongs to a caste/tribe, say ''X''. Being unable to get the caste/tribe certificate within the requisite time on any account, he procures a fake/forged caste/tribe certificate showing his caste/tribe as ''X''. While the caste/tribe certificate can be faulted and he can even be prosecuted and punished for forgery, can it be said on that count that he ceases to belong to the caste/tribe ''X''. In my definite opinion, not.
7. It was secondly contended relying upon the judgment of the Apex Court in the case of Vasant Pandurang Narwade @ Narvade v. Subhash and Ors. in Civil Appeal Nos. 4409-4410 of 2001 (arising out of SLP (C) Nos. 17393-17394) decided on July 20, 2001 (unreported), that the second part of the order of the Scrutiny Committee must also be quashed. In that case, the appellant was elected as a Deputy Mayor on the basis that he belonged to O.B.C. category i.e. "Kunbi". The respondent No. 1, who was neither a candidate nor a voter filed a Public Interest Petition alleging that the appellant did not belong to "Kunbi" caste and the Caste Certificate produced by him was fabricated and, therefore, the seat of the Deputy Mayor should be declared to have become vacant. In the meanwhile, the Election Commission also referred the case to the Scrutiny Committee, who submitted a report that the Caste Certificate issued in favour of the appellant has not in fact been issued by the authority. Relying on this, the Writ Petition before the High Court was allowed and the seat was declared to be vacant. This order of the High Court was challenged in appeal before the Supreme Court. In the said case, the Tahsildar, who had issued the Caste Certificate, had filed an affidavit that the Caste Certificate had in fact been issued by him. The Supreme Court held that the Scrutiny Committee did not act fairly and failed to comply with the basic rules of natural justice. The Apex Court further held that only the validity of the certificate was considered and the Committee had overlooked the real issue i.e. whether the appellant did belong to Kunbi caste and, therefore, allowed the appeal and remanded the matter back to the Scrutiny Committee. The facts in the case of Vasant Pandurang Narvade and in the present cases are some what different. In Narvade''s case, the Scrutiny Committee had held that the certificate was not issued by the authority, which purportedly issued it, but the Tahsildar had filed an affidavit stating that he had issued the certificate. In the present case, the Executive Magistrate had not only sent a letter stating that he had not issued the Caste/tribe Certificates, but Shri. H. H. Saraf, who had purportedly issued the caste/tribe certificates, has filed an affidavit in this Court stating that he had not issued the concerned caste/tribe certificates. In the affidavit, he has also stated that he has gone through the office records wherein Inward entries are made of every application received for issuance of Caste Certificate and the office record does not show any application for caste certificate having been received from the petitioners. There is another important feature. It is now well settled principle that electoral will expressed by the people in electing a candidate should not be lightly interfered. Election result represent the collective will of the Constituency and, therefore, the Courts should be slow in setting aside the elections and/or removing the candidates who have been elected. It was in this light that the Apex Court reversed the judgment of the High Court unseating the elected candidate. Therefore, the judgment of the Apex Court in Vasant Pandurang Narwade''s case does not help the petitioners.
8. In the case of Madhuri Patil (cited supra), the Hon''ble Supreme Court observed in paragraph 12 that:
"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."
9. If the certificate is fake and thereby any person, who does not belong to scheduled caste or tribe as claimed by him, gains employment or admission in an educational institute, he deprives a backward person really belonging to scheduled caste/tribe an opportunity to that post/seat. In this connection, the Apex Court further observed in para 12 of Mudhuri Patil''s case :
"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:
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."
10. Thus, the Scrutiny Committee is required to verify the caste/tribe claim very carefully. The Scrutiny Committee, in the present case, after verifying the caste/tribe certificate, had come to the conclusion that the certificate is forged and fake. In this view of the matter, the respondent No. 2 was right in issuing the directions summarised at Sr. No. (ii) and (iii) in para No. 5 of this judgment.
11. It was lastly contended by the learned Counsel for the petitioners that since the first part of the directions regarding the declaration as to the claim of the petitioners of the caste/tribe is being set aside, the petitioners should be allowed to continue in service. Reliance was placed upon the observations made in paragraph 38 by the Apex Court in the case of State of Maharashtra v. Milind and Ors., reported in 2001(1) Mh.L.J. (S.C.) 1. In that case, the respondent had obtained admission to the Medical College on the basis of an erroneous caste claim. He has joined the medical course in 1985-86 and fifteen years had passed. The State had incurred expenditure in providing education to him. He was probably serving the community as a Doctor. He was useful to the community. In view of these peculiar facts, it was held that by depriving him of the degree would be a loss not only to him but to the community as a whole, which was being benefitted by his education, and also loss to the State which had spent lacs of rupees in educating him. In the present case, the State has not spent any money on the employment of the petitioners. It is the petitioners, who have derived benefit of salary and other benefits of employment on the basis of false caste/tribe certificates. They are not holding any specialised training on the petitioners for the posts which they are holding. The petitioners, who have made such false claims on the basis of false certificates are depriving the genuine scheduled caste/scheduled tribe persons from the posts. Continuing the petitioners in the present posts to which they are apparently not entitled to( at least until they prove that they genuinely belong to the scheduled tribe) would mean to deprive genuine scheduled tribe persons of the post to which they are legitimately entitled to.
12. There is another aspect of the matter. The group of present three petitions is only a small faction out of several such petitions which are pending and listed on the board for admission. They are being considered separately and heard separately as one of the Counsel in those petitions has reported sickness. The learned Counsel for the respondent No. 3 states that false and fake certificates were produced on a very large scale by dozens of candidates and their certificates have been found to be fake and forged. Thus large number of seats which were reserved for the persons belonging to scheduled castes/tribes are usurped by ineligible persons. The persons who genuinely belong to scheduled castes/tribes are being deprived of their legitimate benefits of reservations. In the circumstances, continuing the status quo would mean causing injustice to the persons genuinely belonging to scheduled castes/tribes. The persons who are preparatory of forgery should not be allowed to reap the benefits of their own wrong. To remedy the injustice likely to be caused to the persons belonging to the scheduled caste/tribe at the hands of upper caste persons who wrongfully obtain false certificates the Legislature of Maharashtra by an Act being Act No. XXIII of 2001 which provides that the person, who has obtained benefits under false caste/tribe certificate, should be deprived of all his benefits. This Act has removed the basis on which the direction in the judgment in the case of State of Maharashtra v. Milind and Ors., of not depriving him of the benefits, was given.
13. In the circumstances, petition is partly allowed. Rule is made absolute to the extent that the 1st part of the order of the respondent No. 2 (summarised in para 5(i) of this judgment) declaring that the petitioners do not belong to "Tokare Koli" is set aside. The petitioners are free to obtain proper caste/tribe certificates from the proper authority but whenever such certificates are obtained and are sought to be relied upon, they should be first sent to the Scrutiny Committee for verification. The remaining part of the order of the Scrutiny Committee including declaring the caste certificates as invalid and the direction for prosecution is maintained. Rule discharged to that extent. No order as to costs.
14. On the oral request of the learned Counsel for the petitioners, the operative part of this order is stayed for a period of two weeks.
