Dist. Collector Satara & Anr. vs Mangesh Nivrutti Kashid

35 district level committees were constituted to verify caste certificates of candidates who wished to contest the elections to local authorities – High Court quashed the said Notification with direction that for both, the matters of constitution of the Committee and operation of the Vigilance Cell, the directions in Kumari Madhuri Patil* case have to be given full effect to – The original certificates issued in pursuance of Government Resolution of 30.07.2011 were directed to be recovered from the respective persons and destroyed forthwith – However, said judgment was stayed and as a result these certificates, issued under the said circular, continued to hold the field and the process followed as per the Act of 2000, read with the Rules of 2003 – On 31.8.2012, 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 were notified – Once again, the discretion was left to the Scrutiny Committee to solicit a report of vigilance inquiry, not making it mandatory – The issue pertained to the interregnum period between Notification issued on 30.07.2011 and Rules notified on 31.08.2012 – Challenge was to the Caste Validity Certificates granted to the candidates 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 – Held: Requirement of verification of certificates by the Vigilance Cell was provided to be mandatory in terms of judgment in Kumari Madhuri Patil* – However, as implemented for the interregnum period in question, the input from Vigilance Cell was obtained only selectively – Under the Rules of 2012, the requirement was not made mandatory, but whenever the Scrutiny Committee felt it could solicit a report of vigilance inquiry and not in all cases – The exercise of issuance of 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 nonentitled persons do not get benefit at the cost of entitled persons – The certificates in question were alleged to have been obtained without vigilance reports and within a very short period of time – The exercise carried out in the interregnum period between 30.7.2011 and 31.8.2012 clearly showed that no proper exercise was carried out or could have been carried out given the time frame within which the caste certificates were issued – Thus, the exercise so undertaken cannot be upheld and has to be quashed with the direction to carry out the said exercise afresh – It will be for the Caste Scrutiny Committee to carry out the aforesaid exercise while notifying the parties concerned through appropriate public notices – These directions were to 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 – Constitution of India – Art. 142 – 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.

Constitution of India: Arts.141 and 142 – Guidelines/Directions – Filling up the vaccum – In the absence of legislation – Held: The purpose of any judicial legislation is to fill a vacuum – It does not preclude legislators from enacting law – There is ample power conferred by Art.32, read with Art.142 of the Constitution to make orders which have the effect of law by virtue of Art.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 – Judicial legislation.

Administrative Law: Subordinate legislation/delegated legislation – Notification dated 30.7.2011 issued by the Social Justice, Special Assistance Department of the State of Maharashtra, in exercise of powers under s.6(1) of Act of 2000 – Challenged on the ground that the Notification was not in conformity with directions contained in Kumari Madhuri Patil* case – Held: A reading of Notification makes it clear that the Caste Scrutiny Committees were constituted to facilitate verification of Caste Certificates of the candidates willing to contest for elective post in any local authority – The composition of the Committee was made in pursuance of the specific statutory power in terms of s.6(1) of the Act of 2000 – 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 i.e. 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 – The challenge in this case is not based on any of these parameters, but is simply on the ground that the notification is not in exact conformity with the directions issued by this Court in Kumari Madhuri Patil 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 – Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000.

Allowing the appeals, the Court

HELD: 1. Composition of Scrutiny Committee

1.1 The impugned order is predicated on a reasoning, as if the judgment in the Kumari Madhuri Patil case, as modified by the Kumari Madhuri Patil-II 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. 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. 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. It has 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. [Paras 24, 25] [706-B-E] Kumari Madhuri Patil & Anr. v. Additional

Commissioner, Tribal Development & Ors. (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50 ; Kumari Madhuri Patil & Anr. v. Addl. Commr., Tribal Development, Thane & Ors. (1997) 5 SCC 437 : [1997] 3 SCR

1056 ; (Kumari Madhuri Patil-II) – relied on.

1.2 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 case, and modified by the Kumari Madhuri Patil-II 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. 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. 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. The challenge in this case is not based on any of these parameters, but is simply on the ground that the notification is not in exact conformity with the directions issued by this Court in the Kumari Madhuri Patil case. Such a challenge would not be sustainable in view of the settled principles of examining such subordinate legislation/statutory notifications. [Para 26] [707-FG; 708-A-D]

2.1 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 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 wherever the Scrutiny Committee feels it “may” solicit a report of vigilance inquiry. 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. This is a process which will be so followed under the Rules of 2012. [Para 27] [708-E-G; 709A-B]

2.2 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 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, the view of the High Court is correct. During the interregnum period, between 30.7.2011 (when the Notification was issued) and 31.8.2012 (when the Rules of 2012 were notified) no 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. 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, the exercise so undertaken cannot be upheld and has to be quashed with the direction to carry out the aforesaid exercise afresh. [Paras 28, 29] [709-C-F]

3. The fresh exercise has to be undertaken within a period of six months 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. In view of the case 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. Those, whose caste certificates were rejected by the Caste Scrutiny Committee, without any Vigilance Inquiry, may be given the right to appeal against such rejection, as per Rule

7 of the 2012 Rules. [Para 31] [710-A-C]

Dayaram v. Sudhir Batham & Ors. (2012) 1 SCC

333 : [2011] 15 SCR 1092 ; Bandhua Mukti Morcha v. Union of India & Ors. (1984) 3 SCC 161 : [1984]

2 SCR 67 ; Vineet Narain & Ors. v. Union of India & Ors. (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 ; Vishaka v State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404 ; The Director of Tribal Welfare, Andhra Pradesh v. Laveti Giri & Anr. (1995)

4 SCC 32 : [1995] 3 SCR 430 – relied on.