2019 Supreme(Bom) 552

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANJIT MORE, BHARATI H. DANGRE, JJ.
KESHARBEN MURJI PATEL - Appellant
Vs.
STATE OF MAHARASHTRA AND ORS. - Respondents
Writ Petition No. 181 of 2018, 3673 of 2018, 145 of 2018, 146 of 2018, 147 of 2018; Notice Of Motion No. 536 of 2017, 549 of 2018, 550 of 2018, 559 of 2018, 560 of 2018, 561 of 2018
Decided On : 02-04-2019

Headnote:

Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Sections 9A,5A,5B,5-B,8 - Land Acquisition Act - Section 30 - Maharashtra Scheduled Caste, 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 - Rule 12,13,13(1)(d) – Constitution of India,1950 – Articles 14,142,243-Q,243T - Five Writ Petitions listed before us involve a common question of law pitted against distinct set of facts. However, since we are called upon to deal with a common question of law, the said writ petitions were tagged together and heard finally by consent of all the parties. The claims of the petitioners before us have been invalidated by the competent Caste Scrutiny Committee constituted under the 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 and we would delve into the facts of each case separately after answering the common question which has been raised in all the petitions - Writ Petitions filed before us raise two important questions i.e. whether the period of six months and the further extended period of 12 months stipulated by the legal legislature i.e. the Mumbai Municipal Corporation Act, to submit caste validity certificate is mandatory or directory ? The second point which is put forth by the petitioners is in relation to the improper constitution of the vigilance cell, in absence of the participation of Deputy Superintendent of Police in the conduct of Enquiry by Vigilance Cell, and whether the decision of the caste scrutiny committee is sustainable in the backdrop of the said lacunae sought to be put forth by the petitioners - whether the decision rendered by the Full Bench, as mentioned above, still holds good or the amendment has brought change in the legal scenario calling for its reconsideration - whether the period of six months and the further extended period of 12 months stipulated by the legal legislature i.e. the Mumbai Municipal Corporation Act, to submit caste validity certificate is mandatory or directory ? - whether the decision of the caste scrutiny committee is sustainable in the backdrop of the said lacunae sought to be put forth by the petitioners - whether the decision of the Full Bench still holds the field in light of the subsequent legislative amendments and the stipulation of submitting the caste validity certificate in the prescribed period is mandatory, - whether the caste or sub-caste falls under the category of Backward class, it is not open for the committee to declare that a particular candidate does not belong to the said caste, but belongs to another caste in the said list, cannot be sustained. – Held, Court are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of "the unfair". It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Courts support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We 41 (2017) 4 SCC 1 PART A are of the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course - consideration recorded by us in the foregoing paragraphs, we may confess, that we felt persuaded for taking the view that we have, for a very important reason - national character. There is a saying-when wealth is lost, nothing is lost; when health is lost, something is lost; but when character is lost, everything is lost. .. The issue in hand has an infinitely vast dimension. If we were to keep in mind immediate social or societal gains, the perspective of consideration would be different. The submission canvassed needs to be considered in the proper perspective. We shall venture to drive home the point by an illustration. We may well not have won our freedom, if freedom fighters had not languished in jails and if valuable lives had not been sacrificed. Depending on the situation, even civil liberty or life itself, may be too trivial a sacrifice, when national interest is involved. It all depends on the desired goal. The Preamble of the Indian Constitution rests on the foundation of governance on the touchstone of justice. The basic fundamental right of equality before law and equal protection of the laws is extended to citizens and non-citizens alike through Article 14 of the Constitution on the fountainhead of fairness. The actions of the appellants are founded on unacceptable behaviour, and in complete breach of the Rule of Law. Their actions constitute acts of deceit invading into a righteous social order. National character, in our considered view, cannot be sacrificed for benefits - individual or societal. If we desire to build a nation on the touchstone of ethics and character and if our determined goal is to build a nation where only the Rule of Law prevails, then we cannot accept the claim of the appellants for the suggested societal gains. Viewed in the aforesaid perspective, we have no difficulty whatsoever in concluding in favour of the Rule of Law. Such being the position, it is not possible for us to extend to the appellants any benefit under Article 142 of the Constitution - we have recorded the finding that the claim of the petitioner is not substantiated by sufficient evidence being adduced before the Scrutiny Committee and since they are unable to prove the claim, it came to be rejected. Once the claim is found to be rejected, the consequences of disqualification must fall upon them and the seat stands vacated. The question is only about the two petitioners i.e. in Writ Petition Nos. 145/2018 and 3673/2018 where we have allowed the writ petition and have quashed and set aside the order passed by the Scrutiny Committee. The elections to the Municipal Corporation were held in February 2017 and the result came to be declared on 23rd February 2017. This Court, by interim order dated 19th August 2017 had granted protection and have put in abeyance the consequences flowing from invalidation of the claim of the petitioner. In light of the said interim order passed by us, the petitioner continued to hold the office. The claim of the petitioners has been found to be improperly rejected and we have quashed and set aside the said order and given a declaration to the effect that they belong to the caste which they claim and hence should continue to hold the said post. Pursuant to their election, in light of the said aforesaid position, the petitioners in Writ Petition Nos. 145/2018 and 3673/2018 are entitled to continue in their seats since the effect of disqualification was postponed by an interim order and we have now quashed and set aside the impugned order - consequences must strictly follow on invalidation of a claim of caste staked by a particular candidate and therefore, there is no escape from the provisions of Section 10 of the Act No.XXIII of 2001. Once the candidates claim has been found to be either false or fraudulent and if he has contested the election on a seat reserved for Other Backward category and is not able to substantiate his claim and the claim is rejected by the competent Scrutiny Committee, then, the seat which he has secured and belonging to the backward class category deemed to be effected with retrospective effect - Writ Petitions are disposed of