Partly allowed

Mohammed Sabir Ayyub Qureshi v. the State of Mah and Ors.

Bombay HC5 Mar 2012WP/994/2012

Case brief

AI extract

What is this about?

In a writ petition regarding the invalidation of a caste certificate, the Bombay High Court directed a caste scrutiny committee to reconsider a petitioner's OBC claim based on a vigilance report, quashing a disqualification order pending the outcome of the review.

What did the court decide?

Directed the Scrutiny Committee to reconsider the petitioner's claim based on vigilance report and documentary evidence within four weeks; disqualification order kept in abeyance.

Mohammed Sabir Ayyub Qureshi Vs the State of… — Pension and Retirement Benefits | Bombay HC (2012)

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W.P.No.994/2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO.994 OF 2012

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Mohammed Sabir s/o Ayyub Qureishi, Age : 60 years, Occupation : Pensioner, R/o Zahir Maulvi Chawl, Maulvi Compound, Reti Bandar Road, Kalyan (West), District Thane

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..PETITIONER

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VERSUS

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The State of Maharashtra Through its Secretary, Social Welfare Department, Mantralaya, Mumbai - 32

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The SC, VJ, NT, OBC, SBC Caste Certificates Scrutiny Committee No.2, Dhule (Through its Secretary)

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The Tahsildar and Taluka Executive Magistrate, Bhadgaon, District Jalgaon

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Kalyan - Dombiwali Municipal Corporation, Kalyan, District Thane (Through its Commissioner)

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W.P.No.994/2012

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Uday alias Prashant Laxman Samel, Age : 52 years, Occupation : Business, R/o Samel Niwas, Kasar Ghat, Kalyan (West), District Thane ..RESPONDENTS

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Mr S.B. Talekar, Advocate for the petitioner; Mr K.M. Suryawanshi, A.G.P. for respondents no.1 to 3; Mr S.V. Kulkarni (Chapolikar), Advocate for respondent no.4; Mr A.S.Golegaonkar, Advocate for respondent no.5

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CORAM : B. R. GAVAI AND SUNIL P. DESHMUKH, JJ.

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DATE : 5th March, 2012

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ORAL JUDGMENT (PER GAVAI, J.)

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Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, the petition is heard finally at the stage of admission.

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By way of present petition, the petitioner challenges the order passed by the respondent - Scrutiny Committee, dated 30.12.2011, thereby invalidating the claim of the petitioner as belonging to "Kasai", which is notified as Other Backward Classes.

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3 W.P.No.994/2012

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The petitioner had contested the election to respondent no.4 Municipal Corporation against the seat reserved for Other Backward Classes. The petitioner was elected in the said elections. Since the petitioner was elected from the seat reserved for Other Backward Classes, his case was considered by the respondent - Committee, regarding genuineness of his claim to be belonging to Other Backward Classes. The Committee, vide order dated 7.9.2010 had validated the claim of the petitioner. However, respondent no.5 herein, being aggrieved by the grant of validity certificate in favour of the petitioner, approached this Court. This Court by order dated 30.9.2011, passed in Writ Petition No.1169 of 2011, remanded the matter to the respondent - Scrutiny Committee, directing it to get the report of the vigilance cell and pass appropriate order after receipt of the report of the vigilance cell.

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Undisputedly, in pursuance to the said orders, vigilance cell has conducted an inquiry. After the inquiry was conducted, the respondent - Committee, after hearing the petitioner as well as the Counsel for respondent no.5 has invalidated the claim of the petitioner vide order dated 30.12.2011. Consequently, the petitioner has also been declared to be disqualified vide order dated 30.1.2012. The petitioner, by way of amendment, has also

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W.P.No.994/2012

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challenged the said order.

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Shri S.B. Talekar, learned Counsel appearing on behalf of the petitioner submits that though voluminous documentary evidence was placed on record before the respondent - Scrutiny Committee, the respondent - Committee has not even considered the genuineness thereof. He further submits that though the vigilance cell has found the claim of the petitioner to be genuine, the same has been totally ignored by the respondent Committee.

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On the contrary, Shri A.S. Golegaonkar, learned Counsel appearing on behalf of respondent no.5 submits that the very caste certificate issued in favour of the petitioner in the year 1971 is fraudulent inasmuch as, at the relevant time "Kasai" caste was not included in Other Backward Classes, but caste "Khatik" was included. He, therefore, submits that the respondent - Committee has rightly held the petitioner's claim to be invalid.

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A perusal of the vigilance cell report would reveal that the vigilance cell has found the claim of the petitioner to be genuine. The Officers of the vigilance cell have personally visited the place where the petitioner was originally residing and upon inquiry, it has

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W.P.No.994/2012

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found that the petitioner belongs to "Kasai" caste. Not only that, the petitioner has placed on record voluminous documents, as way back as of 1958, showing therein that the caste of the petitioner, petitioner's father, petitioner's grand-father is "Kasai". However, the respondent Committee has ignored all these documents only on the ground that the caste "Kasai" is included in Other Backward Classes , for the first time in the year 2001 and as such the petitioner cannot be granted benefit on the basis of certificate issued in the year 1971.

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A perusal of the record would reveal that the vigilance cell has clearly found the claim of the petitioner to be genuine. The perusal of the letter dated 15.10.2011 would reveal that the Tahsildar, Bhadgaon has informed the in-charge of the vigilance cell that the signature on the certificate dated 19.5.1971, issued in favour of the petitioner in the month of December, 1971, tallies with the signature of the erstwhile Tahsildar, which was compared from his signature on the cash book of December, 1971. Even from the affidavit in reply filed on behalf of the office of the Tahsildar in the earlier proceedings, it would reveal that the only statement that is made is that the record of 1971 is not available and, therefore, it was doubtful as to whether the said certificate, in fact, was granted in favour of the

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6 W.P.No.994/2012

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petitioner or not. It can further be seen that the said certificate certifies the petitioner to be belonging to "Kasai" caste. It is not as if that though belonging to "Kasai" caste, the petitioner has obtained the certificate showing him to be belonging to "Khatik" caste, which was then notified as Other Backward Classes. In that view of the matter, we find that the respondent - Committee was not justified in rejecting the claim of the petitioner only on the ground that "Kasai" caste is included in Other Backward Classes in the year 2001. No doubt, that the report of the vigilance cell is not binding upon the respondent - Committee. However, when the Committee decides to disagree with the findings of the vigilance cell, it is expected to give reason as to why it does not accept the report of the vigilance cell.

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We are of the considered view that the issue, as to whether in the year 1971 caste "Kasai" was notified as Other Backward Classes or not, would not be relevant as of now, because in the year 2001 the caste "Kasai" is very much included in Other Backward Classes and as such the respondent - Committee, without going into the technicalities ought to have considered the claim of the petitioner on its own merits. Undisputedly, on the date on which the petitioner was elected i.e. 1.11.2010, caste "Kasai" was very much included in Other Backward Classes category. The respondent Committee was

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W.P.No.994/2012

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bound to consider the claim of the petitioner on its own merits, without going into hyper-technical aspects of the matter. In that view of the matter, we find that the impugned order is not sustainable.

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During the pendency of the petition, the petitioner has been declared to be disqualified. In that view of the matter and particularly in the peculiar facts and circumstances of the case, we are inclined to partly allow the petition in the following terms :-

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(i) Respondent no.2 Committee is directed to reconsider the claim of the petitioner by taking into consideration the report of the vigilance cell and other documentary evidence placed on record by the petitioner. The respondent Committee will examine the claim of the petitioner on its own merits, without being influenced by the fact that the certificate of the petitioner is issued in the year 1971. The same shall be done within a period of four weeks from today;

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(ii) Till the decision of the respondent - Committee, the order of disqualification shall be kept in abeyance and no fresh elections will be held in the ward from which the petitioner was elected;

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W.P.No.994/2012

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(iii) In the event the respondent - Committee finds that the claim of the petitioner is valid, the impugned order of disqualification shall stand quashed and set aside and the petitioner would be entitled to continue as a Member of the Municipal Corporation;

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(iv) In the event the respondent - Scrutiny Committee finds the claim of the petitioner to be invalid, the order of disqualification will come into operation and the respondent - Municipal Corporation will proceed to hold the election for the ward from which the petitioner was elected.

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(v) Rule made absolute in the above terms with no order as to costs.

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(vi) Parties to act on authenticated copy.

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(SUNIL P. DESHMUKH, J.)

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(B. R. GAVAI, J.)

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amj/wp994.12

Mohammed Sabir Ayyub Qureshi v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Mohammed Sabir Ayyub Qureshi v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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