REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NO. 2723 OF 2015

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

VERSUS

MANGESH NIVRUTTI KASHID …Respondent(s)

WITH

C.A. No. 2727 of 2015

C.A. No. 2728 of 2015

C.A. No. 2729 of 2015

C.A. No. 2730-2731 of 2015

C.A. No. 2732 of 2015

C.A. No. 2734 of 2015

J U D G M E N T

SANJAY KISHAN KAUL, J.

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

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

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

1

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

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

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

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

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

opportunity in matters of public employment under Article 16 of the

Constitution, an enabling provision was made for providing reservation

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

untouchability, was one more provision in this direction.

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

necessary to issue caste certificates for obtaining employment and

admission to educational institutions. Unfortunately, this gave rise to

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

certificates for availing the benefits. This endemic problem forms the

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

v. Additional Commissioner, Tribal Development & Ors

1

(Kumari

Madhuri Patil).

1 (1994) 6 SCC 241

2

3.The facts in Kumari Madhuri Patil

2

case itself are an illustration

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

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

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

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

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

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

Patil

3

case, while discussing the various provisions of the Constitution,

emphasised that the State was enjoined under our constitutional scheme

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

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

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

admission wrongly gained, or employment wrongly obtained, on the

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

depriving a genuine person for whose benefit the rights have been

conferred under the Constitution. Simultaneously, in view of the

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

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

2 (supra)

3 (supra)

3

proper procedure or legislation provided for the checks and balances in

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

Patil

4

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

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

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

controversy raised in the present appeals, are as under:

“4. All the State Governments shall constitute a Committee of

three officers, namely, (I) an Additional or Joint Secretary or

any officer higher in rank of the Director of the department

concerned, (II) the Director, Social Welfare/Tribal

Welfare/Backward Class Welfare, as the case may be, and (III)

in the case of Scheduled Castes another officer who has

intimate knowledge in the verification and issuance of the

social status certificates. In the case of the Scheduled Tribes,

the Research Officer who has intimate knowledge in identifying

the tribes, tribal communities, parts of or groups of tribes or

tribal communities.

5. Each Directorate should constitute a vigilance cell consisting

of Senior Deputy Superintendent of Police in over-all charge

and such number of Police Inspectors to investigate into the

social status claims. The Inspector would go to the local place

of residence and original place from which the candidate hails

and usually resides or in case of migration to the town or city,

the place from which he originally hailed from. The vigilance

officer should personally verify and collect all the facts of the

social status claimed by the candidate or the parent or guardian,

as the case may be. He should also examine the school records,

birth registration, if any. He should also examine the parent,

guardian or the candidate in relation to their caste etc. or such

4 (supra)

4

other persons who have knowledge of the social status of the

candidate and then submit a report to the Directorate together

with all particulars as envisaged in the pro forma, in particular,

of the Scheduled Tribes relating to their peculiar

anthropological and ethnological traits, deity, rituals, customs,

mode of marriage, death ceremonies, method of burial of dead

bodies etc. by the castes or tribes or tribal communities

concerned etc.”

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

14 of this judgment, which reads as under:

“14. Since this procedure could be fair and just and shorten the

undue delay and also prevent avoidable expenditure for the

State on the education of the candidate admitted/appointed on

false social status or further continuance therein, every State

concerned should endeavour to give effect to it and see that the

constitutional objectives intended for the benefit and

advancement of the genuine Scheduled Castes/Scheduled

Tribes or backward classes, as the case may be are not defeated

by unscrupulous persons.”

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

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

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

composition of the Scrutiny Committee, on account of certain

administrative exigencies. This request was acceded to in Kumari

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

5

Ors.

5

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

“3. As regards prayer (b) read with direction No. (iv) of the

Order of this Court, we too appreciate the inconvenience caused

due to vast area of the State. Therefore, instead of one

committee of three officers, there will be three Scheduled

Tribe/Caste Scrutiny Committees comprising of five members

with quorum of three members, as suggested in para 4 of the

directions, to take a decision. At Pune, Nasik and Nagpur, six

Caste Scrutiny Committees for SCs, Denotified Tribes,

Nomadic Tribes, Other Backward Classes and the Special

Backward Category in existence at Mumbai, Pune, Nasik,

Aurangabad, Amravati and Nagpur would continue to scrutinise

the certificates issued by the respective officers and take a

decision in that behalf. In this regard, it is also suggested by

Shri Dholakia, learned Senior Counsel for the applicant, that in

case any certificate has been wrongfully refused by the

certificate issuing authority, the aforestated Committees also

would go into the question and decide in that behalf, whether

refusal was wrongful and in case it finds that the refusal was

wrongful, they are at liberty to direct the authority to grant the

certificate.

4. With regard to prayer (c) also, we feel that the Caste Scrutiny

Committees for Social Welfare, Cultural Affairs and Sports

Department should comprise of Additional Commissioner

(Revenue) — Chairman of the Revenue Division concerned;

Divisional Social Welfare Officer-Member; and Research

Officer as a Welfare Officer-Member-Secretary to function in

that behalf.”

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

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

Assembly, a legislative enactment to cover aspects beyond education and

5 (1997) 5 SCC 437

6

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

The law was so enacted vide The Maharashtra Scheduled Castes,

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

Other Backward Classes and Special Backward Category (Regulation of

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

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

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

“An act to provide for the regulation of the issuance and

verification of the Caste Certificates to the persons belonging to

the Scheduled Castes, Scheduled Tribes, De-notified Tribes

(Vimukta Jatis), Nomadic Tribes, Other Backward classes and

Special Backward Category and for matters connected

therewith or incidental thereto.

WHEREAS it is expedient to provide for the regulation of the

issuance and verification of the Caste Certificates to the persons

belonging to the Scheduled Castes, Scheduled Tribes, De-

notified Tribes (Vimukta Jatis), Nomadic Tribes, Other

Backward Classes and Special Backward Category and for

matters connected therewith or incidental thereto;”

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

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

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

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

under:

7

“2. Definitions.

In this Act, unless the context otherwise requires,-

…. …. …. …. …. ….

(k) "Scrutiny Committee" means the Committee or committees

constituted under sub-section (1) of section 6 for the Scheduled

Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),

Nomadic Tribes, Other Backward Classes or Special Backward

Category for verification of the Caste Certificate and to perform

the function of Scrutiny Committee under this Act;”

“6. Verification of Caste Certificate by Scrutiny Committee.

(1) The Government shall constitute by notification in the

Official Gazette, one or more Scrutiny Committee(s) for

verification of Caste Certificates issued by the Competent

Authorities under sub-section (1) of section 4 specifying in the

said notification the functions and the area of jurisdiction of

each of such Scrutiny Committee or Committees.

(2) After obtaining the Caste Certificate from the Competent

Authority, any person desirous of availing of the benefits or

concessions provided to the Scheduled Castes, Scheduled

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

Other Backward Classes or Special Backward Category for the

purposes mentioned in section 3 may make an application, well

in time, in such form and in such manner as may be prescribed,

to the concerned Scrutiny Committee for the verification of

such Caste Certificate and issue of a validity certificate.

(3) The appointing authority of the Central or State

Government, local authority, public sector undertakings,

educational institutions, Co-operative Societies or any other

Government aided institutions shall, make an application in

such form and in such manner as may be prescribed by the

Scrutiny Committees for the verification of the Caste

Certificate and issue of a validity certificate, in case a person

selected for an appointment with the Government, local

authority, public sector undertakings, educational institutions,

co-operative societies or any other Government aided

8

institutions who has not obtain such certificate.

(4) The Scrutiny Committee shall follow such procedure for

verification of the Caste Certificate and adhere to the time limit

for verification and grant of validity certificate, as prescribed.”

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

in the Kumari Madhuri Patil

6

case, neither specified the exact

composition of the Scrutiny Committee, nor incorporated the aspect of

the Vigilance Committee.

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

continued as constituted under the Kumari Madhuri Patil

7

case, and it

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

said judgment.

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

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

brought into force, The Maharashtra Scheduled Tribes (Regulation of

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

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

6 (supra)

7 (supra)

9

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

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

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

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

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

the Vigilance Cell. The relevant Rules read as under:

“10. Constitution of Vigilance Cell.-

The State Government shall constitute a vigilance cell to assist

each Scheduled Tribe Certificate Scrutiny Committee for

conducting enquiry which shall consist of,-

(i)A Senior Deputy Superintendent of Police;

(ii)Police Inspector (number of Inspectors depending upon

the number of cases);

(iii)Police Constables to assist the Police Inspector;

(iv)Research Officer.

The police personnel shall investigate into the social status

claims by conducting school and home inquiries and other

enquiry as per the reference made by the Scrutiny Committee

under sub-rule (2) of rule 12.”

…. …. …. …. …. ….

“12. Procedure to be followed by Scrutiny Committee.

(1)On receipt of the application, the Scrutiny Committee or a

person authorized by it shall scrutinize the application,

10

verify the information and documents furnished by the

applicant, and shall acknowledge the receipt of the

application. The Member Secretary shall register the

application, received for verification, in the register

prescribed by the Chairman.

(2)If the Scrutiny Committee is not satisfied with the

documentary evidence produced by the applicant the

Scrutiny Committee shall forward the applications to the

Vigilance Cell for conducting the school, home and other

enquiry.

(3)The Vigilance Officer shall go to the local place of residence

and original place from which the applicant hails and usually

resides, or in case of migration, to the town or city or place

from which he originally hailed from.

(4)The Vigilance Officer shall personally verify and collect all

the facts about the social status claimed by the applicant or

his parents or the guardian, as the case may be.

(5)The Vigilance Cell shall also examine the parents or

guardian or the applicant for the purpose of verification of

their Tribe, of the applicant.

(6)After completion of the enquiry, the Vigilance Cell shall

submit its report to the Scrutiny Committee who will in turn

scrutinize the report submitted by the Vigilance Cell.

(7)In case the report of Vigilance Cell is in favour of the

applicant, and if the Scrutiny Committee is satisfied that the

claim of the applicant is genuine and true, the Scrutiny

Committee may issue the validity certificate. The validity

certificate shall be issued in Form G.

11

(8)If the Scrutiny Committee, on the basis of the Vigilance Cell

report and other documents available, is not satisfied about

the claim of the applicant, the Committee shall issue a show

cause notice to the applicant and also serve a copy of the

report of the Vigilance Officer by registered post with

acknowledgement due. A copy shall also be sent to the

Head of the Department concerned, if necessary. The notice

shall indicate that the representation or reply, if any, should

be made within fifteen days from the date of receipt of the

notice and in any case not more than thirty days from the

date of receipt of the notice. In case the applicant requests

for adjournment or extension of the time-limit, reasonable

time, may be granted.

(9)(a) After personal hearing if the Scrutiny Committee is

satisfied regarding the genuineness of the claim, Validity

Certificate shall be issued in Form G.

(b)After personal hearing, if the Scrutiny Committee is not

satisfied about the genuineness of the claim and

correctness of the Scheduled Tribe Certificate, it shall

pass an order of cancellation and of confiscation of the

Certificate and communicate the same to the Competent

Authority for taking necessary entries in the register and

for further necessary action. The Scheduled Tribe

Certificate shall then be stamped as “cancelled and

confiscated.””

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

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

12

Kumari Madhuri Patil

8

case, inasmuch as the assistance to be provided

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

Committee was not satisfied with the documentary evidence produced by

the applicant.

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

practically speaking, the Committee as constituted under Kumari

Madhuri Patil

9

continued and verification by the Vigilance Cell was

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

category. This practice apparently continued without protest or any

further clarification from this Court. On seeking clarification in this

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

principle of application of an ‘analogous’ principle.

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

was laid to the constitutional validity of the guidelines in Kumari

Madhuri Patil

10

case, which was referred to the Constitution Bench and

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

11

8 (supra)

9 (supra)

10 (supra)

11 (2012) 1 SCC 333

13

The Constitution Bench opined that the directions issued were intrinsic

for the actual realization of the fundamental rights of the Backward

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

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

State Governments did not come up with appropriate legislations to

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

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

a core requirement for ascertainment of the veracity of the caste

certificate. After discussing the aspect of judicial activism and judicial

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

“22. Therefore, we are of the view, that Directions 1 to 15

issued in exercise of power under Articles 142 and 32 of the

Constitution, are valid and laudable, as they were made to fill

the vacuum in the absence of any legislation, to ensure that only

genuine Scheduled Caste and Scheduled Tribe candidates

secured the benefits of reservation and the bogus candidates

were kept out. By issuing such directions, this Court was not

taking over the functions of the legislature but merely filling up

the vacuum till the legislature chose to make an appropriate

law.”

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

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

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

14

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

notification dated 30.7.2011, by the Social Justice, Special Assistance

Department of the State of Maharashtra, exercising powers conferred

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

“6. Verification of Caste Certificate by Scrutiny Committee.

(1) The Government shall constitute by notification in the

Official Gazette, one or more Scrutiny Committee(s) for

verification of Caste Certificates issued by the Competent

Authorities under sub-section (1) of section 4 specifying in the

said notification the functions and the area of jurisdiction of

each of such Scrutiny Committee or Committees…”

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

candidates seeking to contest the elections, an infrastructural boost was

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

certificates sought for contesting the elections. In terms of this

Notification, thirty-five district level committees were constituted to

verify caste certificates of candidates who wished to contest the elections

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

specified as the District Collector or the Additional District Collector

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

(Revenue), under the Kumari Madhuri Patil-II

12

case. The relevant

12 (supra)

15

portion of the said Notification is reproduced as under:

“And whereas the Government of Maharashtra has now

decided to constitute District wise Caste Scrutiny Committees

to appoint District Collector or Additional District Collector

(I.A.S.) as the Chairperson of the said Scrutiny Committees for

the purpose of verification of Caste Certificate of the candidates

who (sic.)

13

willing to contest for elective post in any local

authority.

Now, therefore, in exercise of the powers conferred by sub-

section (1) of Section 6 of the Maharashtra Scheduled Castes,

De-Notified Castes (Vimukta Jatis), Nomadic Tribes, Other

Backward Classes and Special Backward Category (Regulation

of Issuance and Verification of) Caste Certificate Act 2000

(Mah. XXIII of 2001), the Government of Maharashtra hereby

constitute Thirty-five District Caste Scrutiny Committees as

specified in the Schedule appended hereto, for verification of

Caste Certificates of the candidates who (sic) willing to contest

for elective post in any local authority, issued by the Competent

Authorities under the sub-section (1) of Section 4 of the said

Act.”

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

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

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

contest for elective post in any local authority…”

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

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

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

13 To be read as who are willing to contest…

16

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

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

final figures for the whole of Maharashtra:

PRAPATRA – B

NECESSARY INFORMATION RELATING TO WRIT PETITION

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

Sr.

No.

Name of

the

Committee/

District

Total

numbe

r of

Validit

y

Certifi

cates

issued

relatin

g to

electio

n

Validit

y

Certifi

cates

verifie

d by

the

Vigila

nce

Cell

Validit

y

certifi

cates

not

verifie

d by

the

Vigila

nce

Cell

Numb

er of

candid

ates

contes

ting

the

electio

n to

whom

validit

y

certifi

cates

are

issued

Numb

er of

validit

y

certifi

cates

stamp

ed

only

for

electio

n

purpos

e

The

validit

y

certifi

cates

in

which

decisi

on is

given

in one

day.

The

validit

y

certifi

cates

in

which

decisi

on is

given

in two

days

The

validit

y

certifi

cates

in

which

decisi

on is

given

in

three

or

more

days.

1 2 3 4 5 6 7 8 9 10

…. …. …. …. …. ….

Total

Maharashtra

3692914273550576644359388 290 36251

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

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

The manner of verification of these certificates would be evident from

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

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

17

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

this exercise!

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

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

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

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

and setting aside of the aforesaid Government Resolution dated

30.7.2011. In these proceedings, through an elaborate judgment dated

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

matters of constitution of the Committee and the operation of the

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

Patil

14

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

in pursuance of the Government Resolution of 30.7.2011 were directed to

be recovered from the respective persons and destroyed forthwith.

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

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

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

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

14 (supra)

18

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

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

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes

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

Backward Category (Regulation of Issuance and Verification of) Caste

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

which were notified on 31.8.2012. These Rules are comprehensive,

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

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

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

“11. Constitution of Scrutiny Committee. – The Scrutiny

Committee shall consist of the following members, namely:-

(a)Divisional Commissioner or Additional

Divisional Commissioner (Revenue) or

Collector or Additional Collector (I.A.S.) or

Additional Collector (Selection Grade) or

Joint Secretary of the State Government or

any officer not below the rank of Joint

Secretary to State Government

Chairman

(b)Deputy Commissioner (Social Welfare) or

Regional Deputy Commissioner (Social

Member

19

Welfare) or Divisional Social Welfare Officer

(c)Research Officer or Assistant Commissioner

(Social Welfare) or Special District Social

Welfare Officer

Member-

Secretary

12. Constitution of Vigilance Cell. – (1) There shall be a

Vigilance Cell to assist each Scrutiny Committee in conducting

the field inquiry under rule 17. The Vigilance Cell shall consist

of, -

(a)Deputy Superintendent of Police or equivalent;

(b)Police Inspectors;

(c)Police Constables to assist the Police Inspectors.

(2) Jurisdiction of the Vigilance Cell shall be subject to

territorial jurisdiction of concerned Scrutiny Committee, for all

purposes, including domestic inquiry and verification of

authenticity of documents:

Provided that, in appropriate case, if Scrutiny Committee feels,

it may solicit a report of Vigilance Inquiry, from any other

concerned Scrutiny Committee.

(3) Vigilance Cell shall work under the control and supervision

of concerned Caste Scrutiny Committee.”

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

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

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

20

of verification and issuance of caste certificates has proceeded under

these Rules.

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

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

the Notification being issued on 30.7.2011 and the Rules being notified

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

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

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

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

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

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

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

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

adjudication. Neither the certificates issued post the notification of the

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

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

certain broader principles have to be discussed.

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

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

21

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

appointment of the Additional Collector as a Chairman of the Scrutiny

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

subject matter of appeal before this Court in Special Leave Petition

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

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

private respondents who had filed the petition withdrew the challenge to

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

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

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

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

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

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

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

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

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

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

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

22

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

certificates were invalidated by the Scrutiny Committees, and they sought

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

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

petitioners were those who challenged the Caste Validity Certificates

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

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

prayer for direction to the Election Commission to reject the nomination

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

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

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

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

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

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

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

constituted in accordance with the Kumari Madhuri Patil-II

15

case, their

contention is that there was no validly constituted Scrutiny Committee,

which could invalidate their caste certificates.

15 (supra)

23

Composition of the Scrutiny Committees

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

judgment in the Kumari Madhuri Patil

16

case, as modified by the

Kumari Madhuri Patil-II

17

case, was engraved in stone, and it was not

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

derogation of the same.

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

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

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

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

Judicial activism or judicial legislation emerged on account of an

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

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

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

situation (Bandhua Mukti Morcha v. Union of India & Ors.

18

). It has

16 (supra)

17 (supra)

18 (1984) 3 SCC 161

24

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

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

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

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

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

Ors. v. Union of India & Ors.

19

). A classic example of this has been the

seminal judgment of Vishaka v State of Rajasthan

20

, which formulated

effective measures to check the evil of sexual harassment of working

women at the work place. There are numerous judicial pronouncements

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

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

the Kumari Madhuri Patil

21

case, the Constitution Bench, while

examining the validity of the directions and upholding the same had

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

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

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

22

Needless

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

19 (1998) 1 SCC 226

20 (1997) 6 SCC 241

21 (supra)

22 Dayaram v. Sudhir Batham & Ors. (supra)

25

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

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

Patil

23

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

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

about a uniform legislation with necessary guidelines and rules (The

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

24

) and

observed as under:

“8. While reiterating the above guidelines to be workable

principles, it is high time that the Government of India would

have the matter examined in greater detail and bring about a

uniform legislation with necessary guidelines and rules

prescribing penal consequences on persons who flout the

Constitution and comer (sic.) the benefits reserved for the real

tribals etc. etc., so that the menace of fabricating the false

records and to gain unconstitutional advantages by

plain/spurious persons could be prevented. Lest they would

defeat the Constitutional objective of rendering socio-

economic justice envisaged under Article 46 in the Preamble of

the Constitution under Articles 14, 15, 16, 38 and 39.”

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

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

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

specifically in the Kumari Madhuri Patil

25

case, and modified by the

23 (supra)

24 (1995) 4 SCC 32

25 (supra)

26

Kumari Madhuri Patil-II

26

case. The occasion for modification also

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

the procedure made under the notification or legislation meets the

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

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

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

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

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

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

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

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

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

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

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

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

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

by the Court.

27

The challenge before us is not based on any of these

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

26 (supra)

27 Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India

(UOI) and Ors., AIR 1986 SC 515.

27

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

Madhuri Patil

28

case. Such a challenge would not be sustainable in view

of the settled principles of examining such subordinate

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

legislative policy, and confers discretion upon the administrative agency

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

details within the framework of the policy.

29

Requirement of the Vigilance Cell Report

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

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

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

30

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

multifarious petitions arising qua the unverified issuance of such

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

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

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

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

28 (supra)

29 Khambhalia Municipality v. State of Gujarat, AIR 1967 SC 1048

30 (supra)

28

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

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

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

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

Scrutiny Committee constituted to issue the validity certificates must,

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

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

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

followed under the Rules of 2012.

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

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

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

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

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

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

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

interregnum period, between 30.7.2011 (when the Notification was

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

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

29

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

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

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

as possible, to contest the elections.

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

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

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

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

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

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

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

exercise afresh.

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

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

Even the contesting respondents could not seriously dispute that the

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

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

30

Government could also not seriously dispute this exercise to be

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

the certificates already having been issued and the complication which

would be created by forthwith withdrawal of those certificates.

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

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

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

completed, the existing certificates issued for the interregnum period

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

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

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

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

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

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

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

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

those, whose caste certificates were rejected by the Caste Scrutiny

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

31

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

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

private respondents before us is that though they were impleaded as

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

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

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

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

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

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

exercise.

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

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

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

all the original certificates issued by the specially constituted Scrutiny

Committees under the Government Resolution dated 30.7.2011 were to

be recovered from the respective persons and were to be destroyed

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

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

32

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

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

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

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

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

issued, naturally the persons who have been issued these certificates

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

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

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

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

while notifying the parties concerned, through appropriate public notices

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

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

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

Vigilance Cell.

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

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

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

persons.

33

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

their own costs.

...……………………………J.

[Sanjay Kishan Kaul]

...……………………………J.

[K.M. Joseph]

New Delhi.

October 01, 2019.

34