Allowed

Neha Khursheed Alam Shaikh v. State of Maharashtra through Secretary Social Justice and Special Assi. Dept. and Ors.

Bombay HC24 Feb 2022WP/12216/2019

Case brief

AI extract

What is this about?

The High Court quashed an order of the Scrutiny Committee that invalidated the petitioner's OBC certificate. The Court held the Committee erred in rejecting the claim without issuing a mandatory Show Cause Notice under Rule 17(11) of the 2012 Rules, despite a favourable Vigilance report.

What did the court decide?

Impugned order quashed; matter remanded to Scrutiny Committee to decide afresh following mandatory procedure including issuance of Show Cause Notice in Form 25.

Neha Khursheed Alam Shaikh Vs State of Maharashtra… — Writ and Judicial Review | Bombay HC (2022)

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Digitally signed by SHALIKRAM SHALIKRAM PRALHADRAO PRALHADRAO BOREY BOREY Date: 2022.03.02 15:54:39 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 12216 OF 2019

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Neha Khursheed Alam Shaikh
aged 24 years, residing at
96-5/8, Ramji Bhawanji Chawl,
Ittehad Chowk, Andheri Plot,
Jogeshwari (E), Mumbai-60... Petitioner

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V/s.
1. State of Maharashtra,
 through its Secretary,Social Justice
 & Special Assistance Dept.
 Mantralaya, Mumbai -32.
2. District Caste Certificate Scrutiny
 Committee, Mumbai Suburban -
 through its Member Secretary, its
 Office at 5th floor, Administrative
 Bldg., Near Chetna College,Bandra, Mumbai.
3. Additional Deputy Collector,
 Mumbai Suburban District,
 Bandra, Mumbai Suburban.
4. Naiyabanu Abdul Hafiz Ansari,
 Aged Adult, r/a. House No. 154
 Hamida Chawl, Jawahar Arbi School,
 Andheri Plot, Jogeshwari, Mumbai-60
5. Abdul Jabbar Abubkar Sofi,
 Aged Adult, r/a. House No. 154
 Hamida Chawl, Near Andheri Plot,
 Jogeshwari (E), Mumbai-69.… Respondents
Mr. C. K. Bhangoji, Advocate i/by R. K. Mendadkar for the
Petitioner.
Mr.Uday Warunjikar, Advocate a/with Ms. Puja J. Acharekar,
Advocate for Respondent Nos. 4 & 5.
Mrs. R.M.Shinde, AGP for the State.
Ms.Sarika Shetye, Advocate i/by Mr. S.B. Shetye for
Respondent – Sate Election Commissioner.
Mr. Om Suryavanshi for the Respondent -MCGM.

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 CORAM : A.A.SAYED & S.G.DIGE, JJ.
 DATED : 24 FEBRUARY 2022

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 (THROUGH V.C.)

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JUDGMENT : (Per S. G. DIGE, J.)

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1.Rule. Rule made returnable forthwith. Heard finally
by consent of all parties.

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2.By this Petition under Article 226 of the
Constitution of India, the Petitioner has challenged the
order passed by the District Caste Certificate Scrutiny
Committee, Mumbai Suburban, (Hereinafter referred to as
“Scrutiny Committee”) dated 26th June, 2019, thereby
invalidating the Caste Certificate of the Petitioner as
belonging to “Mansuri Caste” which is notified as Other
Backward Class.

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3.The case of the Petitioner, in brief, is as under :
(a)The Petitioner was granted caste certificate
as belonging to “Mansuri” by the Additional
Deputy Collector, Mumbai Suburban District,
Bandra, (Respondent No.3) on 11th October, 2011.
She moved Scrutiny Committee (Respondent No. 2)
for verification of her caste certificate as
she intended to contest election of Mumbai
Municipal Corporation (hereinafter referred as
“said Corporation”). Thereafter, she filed her
Nomination Form for contesting general election
of the said Corporation. The elections were
conducted on 21st February, 2019 and results were
declared on 23rd February, 2019, in which
Respondent No. 4 Naiyabanu Abdul Hafiz Ansari was
declared as elected candidate; whereas the
Petitioner had secured second highest votes.
Aggrieved thereby the Petitioner filed Election
Petition before the Small Causes Court, Mumbai,

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challenging the election of Respondent No. 4 on
several grounds.

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(b)Respondent Nos. 4 and 5 filed the complaints
and opposed the grant of caste validity
certificate to Petitioner before Respondent No 2
Committee. Respondent No. 2 Committee ordered
the Vigilance Cell enquiry in respect of the
caste certificate of the Petitioner. After
getting the Vigilance Cell Report, the Petitioner
has not filed her say as the Vigilance Cell
Report was in her favour. Respondent No. 2
Committee had not issued a show cause notice as
contemplated under the Maharashtra Scheduled
Caste, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes And Social
Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Rules, 2012
(hereinafter referred to as the Rules of 2012) to
the Petitioner. Respondent No. 2 Committee
passed the impugned order, invalidiating the
caste claim of the Petitioner. Hence, this
Petition.

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4.Thus, the basic contention raised on behalf of the
Petitioner by the learned Counsel is that even though the
Vigilance Report was in favour of the Petitioner, the
Respondent No.2-Committee invalidated the caste claim of
the Petitioner, without issuing show cause notice to the
Petitioner in Form-25 as contemplated under Rule 17(11) of
the 2012 Rules. Learned Counsel for the Petitioner relied
upon the Judgment dated 19th November, 2015 of the Division
Bench of this Court in Writ Petition 8788 of 2013 in the
case of Saraswati R. Mayekar Vs. State of Maharashtra &
Ors. and the judgment dated 5th March 2008 of the Division
Bench of this Court in WP No. 4165 of 2007 in the case of
Shri Narayan Janu Pawar vs. The Caste Certificate Scrutiny
Committee, Navi Mumbai & Ors.

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5It is the contention of the Learned Counsel for the
Respondent Nos. 4 and 5 and learned AGP that the Roznama
of the hearing before the Scrutiny Committee shows that
the Petitioner was aware about the Vigilance Report.
Hence, issuance of the show cause notice was not
necessary.

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6Having heard the rival submissions of the parties
and having gone through the record of the case, we find
that in the present case, the issue revolves around the
issuance of show cause notice in form 25 in terms of Rule
17(11)(i) of the Rules of 2012. Rule 17(11)(i) is
reproduced hereunder :

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“17(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;”.

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Form 25 reads as under:

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NOTICE OF HEARING

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 (Notice by Post, Email, FAX)

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To,

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………..

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………..

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Sub:Inquiry into Caste/Tribe Claim.
Ref:Your application/claim…….., dated…..

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SPB/-

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Whereas, this Committee had considered your
application / proposal, Affidavits and accompanying
annexures. Committee had also considered the report of
Vigilance Cell, which is annexed herewith.

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Following are the findings of the committee.

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(a)

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(b)

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(c)

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Till this stage this Committee is not satisfied about
your Caste/Claim, therefore, you are hereby informed
accordingly.

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As per section 8 of 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 (Mah. XXIII of 2011), it
is your responsibility to prove your caste claim.

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If you desire, present your case personally or
through Legal Representative. You are at liberty to
produce documents/evidence in support of your Caste/Tribe
Claim, in accordance with Law.

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Next date of hearing is scheduled at the Office of
this Scrutiny Committee, on Date: ……... at,.... . A.M.
/P.M.

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Failing to appear, matter will be finally decided on
the basis of material available on record.

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Hence this "Notice" of hearing, on the address
provided by you.

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Signature

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Encl: Report of Vigilance
Cell-Page No.

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Member Secretary and
Research Officer,
 Caste Certificate Scrutiny
Committee......... No.

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8In the present case, admittedly the Scrutiny
Committee was not satisfied about the caste claim of the
Petitioner upon consideration of the vigilance report and
did not issue show-cause notice as per Form-25. The issue
is no more res integra and is covered by the judgment of
the Division Bench of this Court in Saraswati Rajnikant
Mayekar vs State of Maharashtra & Ors. cited supra, which
in turn relies upon the judgment of another Division Bench
of this Court in Sapremsing Madhavrao Patil vs State of
Maharashtra & Ors., 2015(5) All MR 563. The Division Bench
also relied upon the judgment of Division Bench of this
Court dated 11th February, 2015 in Lawrence Salvador
D’Souza vs the State of Maharashtra (Writ Petition No. 475
of 2015). The Division Bench held-

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6.Another Division Bench of this Court (Coram:-
Smt Vasanti A. Naik & Shri C. B. Bhadang, JJ) in
Lawrence Salvador D’souza Vs The State of
Maharashtra (Writ Petition No. 475 of 2015) date
11 February 2015, while dealing with the same
Rule and respecting the mandate, allowed the
Petitioner in following terms.

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“For the reasons aforesaid, the writ
petition is partly allowed. The impugned
orders dated 29.12.2014 and 30.12.2014
are hereby quashed and set aside. The
matter is remanded to the respondent no.
2-scrutiny committee for deciding the
caste claim of the petitioner and the
application filed by the respondent no. 5
in accordance with law. It is needless to
state that the scrutiny committee would
be required to grant an opportunity to
the petitioner to cross-examine the
principal and the clerk of the concerned
school if the petitioners, so desires and
also issue a show-cause notice to the

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petitioners in FORM-25 as per Rule 17(11)
of the Rules of 2012, if the scrutiny
committee is not satisfied with the
claim. We direct the scrutiny committee
to decide the matter as expeditiously as
possible and positively within a period
of three months from the date of
appearance of the parties before the
scrutiny committee. The Petitioner
undertakes to appear before the scrutiny
committee on 27.02.2015 so that issuance
of notice to the petitioner could be
dispensed with. Since the order of the
scrutiny committee is set aside, the
consequential order of the corporation,
disqualifying the petitioner would not
survive and the same is set aside. Rule
is made absolute in terms with no order
as to costs.

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We may also extract the relevant portion of the judgment
in Shri Narayan Janu Pawar (supra)-

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7. In the case of Kumari Madhuri Patil (supra), the
Supreme Court has laid down the procedure as required
to be followed by the Scrutiny Committee. The Apex
Court directed the Scrutiny Committee to refer the
caste claim to the Vigilance Cell which is required
to tender its report. The Apex Court has further laid
down that if a favourable report is given by the
Police Inspector, Vigilance Squad, then the Scrutiny
Committee has to issue a caste certificate in favour
of the applicant. However, if the Scrutiny Committee
deferred with the view taken by the Vigilance Cell,
then alongwith copy of the report of the Vigilance
Cell, a Show Cause Notice was to be issued to the
applicant asking him to tender his explanation. In
the Show Cause Notice, the Scrutiny Committee was to
specifically inform the applicant that it deferred
with the view taken by the Vigilance
Committee on A,B,C, ground and it intended to take a
different view. The Apex Court in the case of Kumar
Madhuri Patil (supra) in sub-paras 5, 6, 7 and 8 of

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paragraph 13 has observed as under :-

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"5. Each Directorate should constitute a vigilance
cell consisting of Senior Deputy Superintendent of
Police in over-all charge and such number of Police
Inspectors to investigate into the social status
claims. The Inspector would go to the local place of
residence and original place from which the
candidate hails and usually resides or in case of
migration to the town or city, the place from which
he originally hailed from. The vigilance officer
should personally verify and collect all the facts
of the social status claimed by the candidate or the
parent or guardian, as the case may be. He should
also examine the school records, birth registration,
if any. He should also examine the parent, guardian
or the candidate in relation to their caste etc. or
such other persons who have knowledge of the social
status of the candidate and then submit a report to
the Directorate together with all particulars as
envisaged in the proforma, in particular, of the
Scheduled Tribes relating to their peculiar
anthropological and ethnological traits, deity,
rituals, customs, mode of marriage, death
ceremonies, method of burial of dead bodies etc. by
the caste or tribes or tribal communities concerned
etc.

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6. The Director concerned, on receipt of the report
from the vigilance officer, if he found the claim
for social status to be "not genuine" or ’doubtful’
or spurious or falsely or wrongly claimed, the
Director concerned should issue show-cause notice
supplying a copy of the report of the vigilance
officer to the candidate by a registered post with
acknowledgment due or though the head of the
educational institution concerned in which the
candidate is studying or employed. The notice should
indicate that the representation or reply, if any,
would be made within two weeks from the date of the
receipt of the notice and in no case on request not
more than 30 days from the date of the receipt of
the notice. In case, the candidate seeks for an
opportunity of hearing and claims an inquiry to be
made in that behalf, the Director on receipt of such

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representation/reply shall convene the committee and
the Joint/Additional Secretary as Chairperson who
shall give reasonable opportunity to the
candidate/parent/guardian to adduce all evidence in
support of their claim. A public notice by beat of
drum or any other convenient mode may be published
in the village or locality and if any person or
association opposes such a claim, an opportunity to
adduce evidence may be given to him/it. After giving
such opportunity either in person or through
counsel, the Committee may make such inquiry as it
deems expedient and consider the claims vis-a-vis
the objections raised by the candidate or opponet
and pass an appropriate order with brief reasons in
support thereof.

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7. In case the report is in favour of the candidate
and found to be genuine and true, no further action
need be taken except where the report or the
particulars given are procured or found to be false
or fraudulently obtained and in the latter event the
same procedure as is envisaged in para 6 be
followed.

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8. Notice contemplated in para 6 should be issued to
be parents/guardian also in case candidate is minor
to appear before the Committee with all evidence in
his or their support of the claim for the social
status certificates."

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8. On perusal of the said observations of the Apex
Court, it is clear that the Caste Scrutiny Committee
was under obligation to issue a Show Cause Notice to
the applicant further giving him an opportunity to
offer his explanation, otherwise it was not
sufficient for the Scrutiny Committee to merely
tender a copy of the report of the Vigilance Cell to
the applicant but a separate Show Cause Notice had to
be issued. Admittedly, this procedure has not been
followed by the Caste Scrutiny Committee.

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9. The learned Counsel appearing for the respondent
no.4 invited my attention to the report i.e. the
order passed by the Scrutiny Committee, more
particularly, wherein it was recorded that though the

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applicant was asked to tender documentary evidence in
respect of the period prior to 1961 and inspite of
that, the said information was not tendered by the
applicant. She submitted that copy of the Vigilance
Committee report was given to the applicant and he
had tendered his say on 27th April, 2007 and
therefore, there was sufficient compliance of the
ratio laid down by the Apex Court in Kumari Madhuri
Patil. She further submitted that the applicant had
tendered a false document viz. the School Leaving
Certificate and therefore, on that very ground, the
validity certificate was liable to be quashed and set
aside. It is submitted that therefore, there was no
reason to interfere with the order passed by the
Caste Scrutiny Committee.

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10. We are unable to accept the submission made by
the learned Counsel appearing for the respondent
no.5. In the present case, the record clearly
indicates that no Show Cause Notice was issued to the
applicant though the Vigilance Cell had given the
report in favour of the petitioner and therefore, the
procedure which was required to be followed by the
Caste Scrutiny Committee was not followed and on that
ground alone, the impugned judgment and order is
liable to be quashed and set aside.

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11. The impugned order dated 4th May, 2007 is quashed
and set aside. Matter is remanded back to the Caste
Scrutiny Committee. The Caste Scrutiny Committee
shall issue a Show Cause Notice to the petitioner. If
it intends to defer from the report which was
tendered by the Vigilance Cell in favour of the
petitioner for the Show Cause Notice, the Scrutiny
Committee should mention why it would like to take a
different view than the view taken by the Vigilance
Cell and give reasonable opportunity to the
petitionertotenderhisexplanation
and after the explanation is received, the Caste
Scrutiny Committee shall then decide the application
after hearing both the sides.

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Though the aforesaid case was prior to the coming into
force of the Rules of 2012, Rule 17(11)(i) clearly

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maintains the same procedural requirement. When vigilance
report is in favour of the petitioner and if Scrutiny
Committee intended to take different view then show cause
notice ought to have been given to the petitioner to put-
forth her side. In present case, opportunity is not given
to the petitioner.

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9In light of the above, we allow the Petition and
proceed to pass the following order :

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ORDER

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(i)Impugned judgment and Order dated 26th June, 2019
passed by the Respondent No. 2- Scrutiny Committee, is
hereby quashed and set aside.

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(ii) The matter is remanded to the Respondent No. 2 Caste
Scrutiny Committee for deciding the caste claim of the
Petitioner afresh in accordance with law by issuing a Show
Cause Notice in Form 25 and giving opportunity of hearing
to the Petitioner and all concerned, as early as
possible, preferably within twelve weeks from the date
of the receipt of the copy of this judgment and order.
(iii)Rule is made absolute in the above terms. There
shall be no order as to costs.

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 (S.G.DIGE, J) (A.A.SAYED, J)

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Neha Khursheed Alam Shaikh v. State of Maharashtra through Secretary Social Justice and Special Assi. Dept. and Ors.

Case brief

What is this about?

What did the court decide?

Neha Khursheed Alam Shaikh v. State of Maharashtra through Secretary Social Justice and Special Assi. Dept. and Ors.

Case brief

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What did the court decide?

What the court decided

A compact analysis

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