High Court
Facts
1 WP / 9649 / 2024+ IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 9649 OF 20241] Kum. Vaishnavi D/o Parmeshwar Walkulwad, Age : 19 years, Occu : Education, R/o – Chhatrapati Chow, Canal Road, Nanded Nanded, Tq. and Dist. Nanded2] Kum. Sakshi D/o Parmeshwar Walkulwad, Age : 17 years, Occu : Education, Under Guardianship of Mother Smt. Meera Parmeshwar Walkulwad Age – 38 years, Occu – Service R/o – Chhatrapati Chow, Canal Road, Nanded Nanded, Tq. and Dist. Nanded.. Petitioners Versus1] The State of Maharashtra, Through its Secretary, Medical Education Department, Mantralaya, Mumbai – 32.2] The Scheduled Tribe Certificate Verification Committee, Aurangabad Through its Member Secretary, Aurangabad .. RespondentsANDWRIT PETITION NO. 9614 OF 2024Parmeshwar Yadavrao Walkulwad(Deceased) Through Legal RepresentativeWife Meera Parmeshwar Walkulwad,Age : 39 years, Occu : Household,R/o – At Post Kopara, Tq. Kinwat,Dist. - Nanded .. Petitioner Versus1] The State of Maharashtra, Through its Secretary, Tribal Development Department, Mantralaya, Mumbai – 32.
Legal Reasoning
9 WP / 9649 / 2024+ 16. When admittedly, Parmeshwar has died, even if thecommittee intended to undertake re-scrutiny of his validity on theground which according to it constitutes fraud, it ought to have followeddue process of law. The committee in the order in Parmeshwar’smatter has expressly observed that during the course of hearing ofVaishnavi and Sakshi’s matter, it became aware about his death. Butthe order conspicuously omits to expressly state about they and theirwidowed mother were issued with show cause notices addressed tothem and calling upon them to respond. 17.The exercise has been undertaken in surreptitiousmanner. It is clearly against the principles of natural justice going tothe root of the order itself. It is not made clear even in the order as towhy the show cause notices were not sought to be served to these twogirls and their widowed mother. The whole exercise makes theproceeding void. As far as the power and jurisdiction of the committeeto undertake review on the ground of fraud, admittedly, the issue ispending before the Supreme Court in the matter of State ofMaharashtra and another Vs. Rakesh Bhimashankar Umbarje andothers (SLP (C) No. 015099 / 2024). Though there are division benchjudgments of three division benches of this Court in the matters ofi) Rakesh Bhimashankar Umbarje and others ii) Bharat NaguGarud Vs. State of Maharashtra and others and iii) Anil S/o
Arguments
2 WP / 9649 / 2024+ 2] The Scheduled Tribe Certificate Verification Committee, Kinwat Head Quarter, at Aurangabad, Through its Member Secretary.. Respondents...Advocate for petitioners in both WPs : Mr. Omgashad B. BoinwadAGP for the respondent – State : Mr. R.S. Wani... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE : 09 SEPTEMBER 2024JUDGMENT (MANGESH S. PATIL, J.) :Rule. Rule made returnable forthwith. Learned AGPwaives service for the respondents. 2.These are petitions under Article 226 of the Constitution ofIndia. Considering the exigency, the matters are heard finally at thestage of admission and are being disposed of by this commonjudgment. 3.Petitioners – Vaishnavi and Sakshi are challenging thejudgment and order of the respondent – scrutiny committee dated07-06-2024 refusing to validate their ‘Koli Mahadev’ scheduled tribecertificates. They have been relying upon certificate of validity of theirfather – Parmeshwar Yadavrao Walkulawd. However, unfortunately, heis no more, having died on 14-08-2014. While the proceeding ofVaishnavi and Sakshi was still pending with the scrutiny committee, thecommittee issued show cause notice for recalling the validity of 3 WP / 9649 / 2024+ Parmeshwar. Their claim was dismissed on the ground that he hadobtained certificate of validity by practising fraud. Consequently, byorder dated 24-06-2024 which is under challenge in writ petitionno. 9614 of 2024 by his widow, who happens to be Vaishnavi andSakshi’s mother, the committee recalled the certificate of validity. 4.According to the learned advocate for the petitioners, thereis a serious issue regarding power and jurisdiction of the respondent –committee to undertake review in the light of the division benchjudgments of the co-ordinate benches in the matters of i) RakeshBhimashankar Umbarje and others Vs. State of Maharashtra andothers; 2024 (1) Bom. C.R. 294, ii) Bharat Nagu Garud Vs. State ofMaharashtra and others; 2024 (1) Mh.L.J. 647 and iii) Anil S/oShivram Bandawar Vs. District Caste Certificate VerificationCommittee, Gadchiroli and another; 2021 (5) Mh.L.J. 345. TheCommittee has even failed to follow the due process of law.5.In spite of being made aware about the fact thatParmeshwar was not alive, notice was issued in his name and while inthe process of scrutinizing claims of Vaishnavi and Sakshi, though thematter of recalling Parmeshwar’s validity was closed for orders on07-06-2024, in order to overcome the shortcomings, the committeeissued show cause notice on 10-06-2024, principles of natural justicewere not followed. Vaishnavi and Sakshi ought to have been issued 4 WP / 9649 / 2024+ with notice and should have been allowed to even defend thatproceeding together with their widowed mother.6.The learned advocate, therefore, submits that no dueprocess of law was followed while passing the order recallingParmeshwar’s validity behind his back. They would submit that if thecommittee was intending to recall the validity on the ground of fraud,the allegations were serious and Vaishnavi and Sakshi and theirmother ought to have been extended an opportunity to contest thatproceeding. The decision having been rendered without following dueprocess of law and without observing the principles of natural justice,order in the matter of Parmeshwar is liable to be quashed and setaside.7.The learned advocate for the petitioners would submit as acorollary, once the order of Parmeshwar is found to be non est,irrespective of the allegations of fraud, when he was issued withcertificate of validity by following due process of law, when a vigilanceenquiry was conducted, and by a reasoned order, he was entitled tohave a certificate of validity, Vaishnavi and Sakshi deserve to be issuedwith certificates of validity, may be co-terminus with validity of theirfather – Parmeshwar. He would submit that they are ready to run therisk of facing the consequences as contemplated in Shweta Balaji 5 WP / 9649 / 2024+ Isankar Vs. State of Maharashtra and others (writ petition no. 6320of 2017).8.Learned AGP would submit that though a notice wasissued in Parmeshwar’s matter for recalling his validity in his name, hisbrother had caused appearance through an Advocate, and, therefore, itcannot be said that principles of natural justice were not followed. Hewould submit that the power and jurisdiction to recall the validities onthe ground of fraud is inherent in the committee and so has been heldin the matter of Raju Ramsingh Vasave Vs. Mahesh DeoraoBhivapurkar; (2008) 9 SCC 54, Jyoti Sheshrao Mupde v State ofMaharashtra and others (Writ Petition No. 1954/2009 decided on22/08/2012) and Rajeshwar Baburao Bone Vs. State ofMaharashtra and another; (2015) 14 SCC 497. The committee hasassigned cogent reasons to demonstrate how Parmeshwar was able tosecure validity by resorting to fruad and no exception can be taken.9. Learned AGP would also submit that except Parmeshwar’svalidity, Vaishnavi and Sakshi do not have any other independent andreliable evidence to substantiate their claims. Parmeshwar was notissued with certificate of validity by following due process of law andfollowing the decision in the matter of Maharashtra Adiwasi ThakurJamat Swarakshan Samiti Vs. State of Maharashtra and others; 6 WP / 9649 / 2024+ 2023 SCC Online SC 326, they were not entitled to rely uponParmeshwar’s validity.10.He would further point out that the favourable record of thepetitioners was of recent origin. Contrary record of the older timescould be revealed during the vigilance enquiry wherein petitioners’ nearblood relatives were described in the school record as ‘Koli’ which wasearlier Other Backward Class and is currently Special Backward Class.He would also submit that manipulation was also revealed in the schoolrecord of petitioners’ grandfather – Yadavrao Madhavrao Walkulwad.In his statement recorded on 29-06-2023, he himself had expresslydenied to have undertaken any education in school at village Bothi,Taluka – Umri, District – Nanded.11.Learned AGP would further submit that petitioners’ father –Parmeshwar had executed a sale deed, expressly declaring that hewas not belonging to any tribal community. Even these two girls couldnot clear the affinity test and the impugned judgment and order taking aplausible view, cannot be interferred with in exercise of powers underArticle 226 of the Constitution of India.12.We have considered the rival submissions and perusedthe papers. 7 WP / 9649 / 2024+ 13.Admittedly, Vaishnavi and Sakshi’s father – Parmeshwarwas issued with a certificate of validity by following due process of law,albeit, the committee is of a different view. The vigilance enquiry wasconducted and by a reasoned order, he was held entitled to have acertificate of validity. Incidentally, the Vigilance Officer who submittedthe report in Parmeshwar’s matter had also pointed out four entries inthe school record of the petitioners’ blood relatives which were of theperiod between 1969 fo 1983 wherein they were described as Koliwhich are indeed contrary entries to a claim of ‘Koli Mahadev’. We arepointing out this fact to demonstrate that while passing the order, thethen committee was made aware even about such contrary entrieswhich the committee in the impugned order, seeks to place reliance todiscard petitioners - Vaishnavi and Sakshi’s claims. If in spite of suchcontrary entries, the then committee had taken a plausible view, itcannot be said that no due process of law was followed. 14. It is to be borne in mind that in Maharashtra AdiwasiThakur Jamat Swarakshan Samiti (supra), the Supreme Court haslaid down parameters to be applied before extending benefit of theearlier validity to the subsequent claimants. It lays down that if there isno dispute about blood relationship between the claimants and theearlier validity holders and if they were granted certificates of validity byfollowing due process of law by a speaking order, or a reasoned order, 8 WP / 9649 / 2024+ then only the benefit can be extended. The endeavour of thecommittee to observe that the then committee seeking to takeexception to Parmeshwar’s validity on the ground that no due processof law was followed, but undertaking the scrutiny to demonstrate thatthe evidence before the then committee was deficient to substantiatethe claim, would be like allowing successor committee to sit in appeal. That is not the purport of the parameters laid down in MaharashtraAdiwasi Thakur Jamat Swarakshan Samiti (supra). When aftervigilance enquiry and even going through the contrary record, the thencommittee was satisfied about his claim, the parameters laid downtherein would stand fulfilled and till the time Parmeshwar’s validity isnot recalled by following due process of law, it would enure to thebenefit of his daughters.15. As can be seen from the order passed by the thencommittee, vigilance enquiry was conducted twice and apart from thevalidities of some relatives, may not be related by blood, but referringto positive evidence and specifically observing about he havingsuccessfully gone through the affinity test, he was held entitled to havea certificate of validity by a reasoned order. Vaishnavi and Sakshi,therefore, are entitled to derive benefit from their father’s validity.
Decision
10 WP / 9649 / 2024+ Shivram Bandawar (referred supra), holding that it does not havesuch jurisdiction, we need not, for the time being, burden thisjudgment. The fact remains that Parmeshwar’s validity has beenrecalled by the committee without following due process of law andconsequently, that order being void ab initio, is liable to be quashedand set aside.18. As a logical and legal corollary, Parmeshwar’s validitywould remain in force and Vaishnavi and Sakshi being his daughters,cannot be denied the benefit particularly when they are ready to run therisk of facing the consequences contemplated in Shweta.19. In the result, the following order:I)Both the writ petitions are allowed partly.II)The impugned judgments and orders in both thesepetitions are quashed and set aside.III)Since the petitioners from writ petition no. 9649 of 2024are required to submit the certificates of validity to secure admissionwithin stipulated period, the respondent no. 2 – Scrutiny Committeeshall immediately issue tribe validity certificates to the petitioners asbelonging to ‘Koli Mahadev’ Scheduled Tribe in the prescribed format. 11 WP / 9649 / 2024+ IV)The validities shall be co-terminus with the validity of theearlier holders.V)The petitioners shall not claim equities.VI)The petition to the extent of deceased Parmeshwar isremanded back to the Scrutiny Committee for decision afresh, in thelight of the above observations. The petitioner therein and even thepetitioners in writ petition no. 9649 of 2024 shall appear before theCommittee on 20 September 2024 and the Committee may thereafter,by extending them an opportunity to contest the matter, decide thematter afresh.VII)The petitioners shall co-operate the Committee in thatrespect.VIII)Learned AGP and the Law Officer of the Committee whoare present, shall ensure that the decision is immediatelycommunicated to the Committee.20.Rule is made absolute accordingly. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/