B.P. DHARMADHIKARI, J.

1.Order dated 16/10/2004 passed by Caste Scrutiny Committee invalidating caste claim of petitioner as belonging to Halba scheduled tribe forms subject matter of challenge in this matter. Impugned order is under 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—referred to as Act no.23 of 2001 hereafter. Petitioner has sought that caste certificate on 9/3/1983 & contested election as councilor of Municipal Council, Bhandara on 22/1/2002 against a reserved seat. Because of this invalidation, Collector had declared him disqualified on 6/11/2004 and it was recalled on 22/11/2004 as this Court on 11/11/2004 stayed the order of Scrutiny Committee. Thereafter, during pendency of this petition & because of orders dated 29/11/2004 in it, he has been elected again in January,2007 as scheduled tribe candidate on the strength of same caste certificate & current tenure is due to expire on 2012.

2.In this background, we have heard Adv. Narnaware for petitioner, Adv. Patil for respondent 2 Scrutiny Committee, Adv. Kaptan for respondent 6 & Shri Kale, learned AGP for respondents No. 1 & 3

3.Advocate Narnaware has basically raised 4 issues. The constitution of Committee according to him is not legal as it is in breach of mandatory directions issued by the Hon. Apex Court in case of MadhuriPatil v. Addl. Commissioner, Tribal Development,AIR1995 SC 94 as modified in 1997 at AIR 1997 SC 2581" MadhuriPatil v. Addl. Commissioner, Tribal Development, Thane".Strong support is being taken from direction 4 in 1995 verdict & para 5 of later. Second contention is about no association of Research Officer with vigilance cell and his not accompanying the police officer for spot inquiry & verification. Third ground raised is about not applying affinity test legally & ignoring material provided by petitioner on 28/7/2003. Lastly, it is urged that allegations of malafides leveled are not denied by filing an affidavit of competent officer and plea about perversity of findings is not traversed.

4.In order to substantiate the first contention, Shri Narnaware, learned counsel relied upon assertions in para 16 of writ petition to point out Constitution of Scrutiny Committee which has adjudicated the caste claim of the petitioner. The reliance is being placed on direction No. 4 of the Hon'ble Apex Court in the case of MadhuriPatil vs. Additional Commissioner, Tribal Development, (supra), and view expressed in the case of GM, Indian Bank vs. R. Rani & Anr., reported at (2007) 12 SCC 796. He states that the Additional Secretary or Joint Secretary is not the Chairman of said Committee and Director of Tribal Development was also not associated with it. He also invites attention to the judgment in the case of Director of Tribal Welfare, Government of A.P. vs. Laveti 800, to urge that said direction in MadhuriPatil(supra) is binding and mandatory. To demonstrate that there was no Research Officer involved in Vigilance investigation, he points out that Police Inspector has made enquiry as part of Vigilance Cell on 28.07.2003 and Research Officer has countersigned it on 29.07.2003. The attention is also invited to reply given by the petitioner to vigilance report to show that Research Officer had not accompanied said Police Inspector for field enquiries. The case of MadhuriPatil vs. Additional Commissioner, Tribal Development, Thane,(supra), particularly para 5 therein is cited to buttress this contention. The learned counsel states that because of these lacunae, two documents relied upon by the petitioner which supported his case have not been looked into by the Vigilance Cell and the Committee. The first document according to him is caste certificate of his father issued on 05.10.1977 while the later document is dated 05.01.1927 and of cousin grand father. The atten