Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. It is relevant to note that, once again, the discretion has been left to the Scrutiny Committee to solicit a report of vigilance inquiry, not making it mandatory. Thus, once these Rules were enacted, the process of verification and issuance of caste certificates has proceeded under these Rules.
20. In the course of hearing these appeals, what undisputedly emerged was that the window of period with which we are concerned is between the Notification being issued on 30.7.2011 and the Rules being notified on 31.8.2012. The Rules have not been challenged by any one, and hold the field. Thus, we are not really required to go into what had happened before the Notification came in, or after the Rules came in. We may also note that the challenge before us is in respect of only the certificates issued for the purposes of local self-body elections, as nobody from any other category has approached the Court. Thus, as to whether the Rules of 2003, applicable to the ST category, should have been applied to all the categories on an ‘analogous’ principle, does not require our adjudication. Neither the certificates issued post the notification of the Rules of 2012 require our adjudication. It is only the interregnum period that we are concerned with. However, to deal with this interim period, certain broader principles have to be discussed.
21. An aspect noticed in the impugned order, in para 22, is the order of the Division Bench of the Bombay High Court, opining in Writ Petition No.2527/2009, vide judgment dated 20.1.2010, that the appointment of the Additional Collector as a Chairman of the Scrutiny Committee is not in accordance with law, and that this matter was the subject matter of appeal before this Court in Special Leave Petition No.6003/2010, which had been admitted on 5.7.2011. In this behalf, we have been informed that when the appeal was taken up for hearing, the private respondents who had filed the petition withdrew the challenge to the validity of the Caste Scrutiny Committee and wanted to move an application before the High Court for disposal of the writ petition on merits. Thus, the appeal was disposed of as infructuous. The purpose of this is only to note that no opinion has been rendered in that behalf.
22. We may also note that there were three kinds of writ petitions filed before the High Court. The first set of writ petitioners were those who intended to participate in the ensuing elections of local Government, even though they did not, at that stage, have a caste validity certificate. The prayer was for relaxation of the condition to produce the caste validity certificate at the time of scrutiny, which had been made mandatory (though that certificate once issued was to remain valid for all purposes). The second set of writ petitioners were those whose caste certificates were invalidated by the Scrutiny Committees, and they sought to challenge the decision with a direction to the Returning Officer to allow them to participate in the ensuing elections. The third set of petitioners were those who challenged the Caste Validity Certificates granted to the candidates who were party respondents in both petitions, 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. The impugned judgment has been rendered in the context of the third set of petitioners. The certificates in question were alleged to have been obtained without vigilance reports and within a very short period of time, as would be apparent from the chart aforesaid.
23. The grievance against the impugned order, however, is not only confined to the third set of petitioners, but also to some of the second set of petitioners, as in view of the Scrutiny Committees not being DIST. COLLECTOR SATARA & ANR. v. MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.] constituted in accordance with the Kumari Madhuri Patil-II15 case, their contention is that there was no validly constituted Scrutiny Committee, which could invalidate their caste certificates. Composition of the Scrutiny Committees
24. The impugned order is predicated on a reasoning, as if the judgment in the Kumari Madhuri Patil16 case, as modified by the Kumari Madhuri Patil-II17 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.
25. On the aforesaid aspect, on hearing learned counsel for the parties, we are unable to persuade ourselves to agree with the line of reasoning adopted by the High Court. 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, and 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 (Bandhua Mukti Morcha v. Union of India & Ors.18). 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 (Vineet Narain & Ors. v. Union of India & Ors.19). A classic example of this has been the seminal judgment of Vishaka v State of Rajasthan20, which formulated effective measures to check the evil of sexual harassment of working women at the work place. There are numerous judicial pronouncements in this behalf, but they need not detain us further, specifically for the reason that in the very judgment relied upon in the impugned order, i.e., the Kumari Madhuri Patil21 case, the Constitution Bench, while examining the validity of the 15 (supra) 16 (supra) 17 (supra) 18 (1984) 3 SCC 161 19 (1998) 1 SCC 226 20 (1997) 6 SCC 241 21 (supra) directions and upholding the same had clearly observed that “by issuing such directions, this Court was not taking over the functions of the legislature but merely filling up the vacuum till the legislature chose to make an appropriate law.”22 Needless to observe that these observations, being of the Constitution Bench, would be binding on us, and so would it naturally be on the High Court. We may note that while noticing the directions in the Kumari Madhuri Patil23 case, this Court had expressed a view that it was high time that the Government of India examine the matter in greater detail, and bring about a uniform legislation with necessary guidelines and rules (The Director of Tribal Welfare, Andhra Pradesh v. Laveti Giri & Anr. 24) and observed as under: “8. While reiterating the above guidelines to be workable principles, it is high time that the Government of India would have the matter examined in greater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and comer (sic.) the benefits reserved for the real tribals etc. etc., so that the menace of fabricating the false records and to gain unconstitutional advantages by plain/spurious persons could be prevented. Lest they would defeat the Constitutional objective of rendering socio- economic justice envisaged under Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38 and 39.”
26. If we examine the controversy in the conspectus of the aforesaid legal position, 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 Patil25 case, and modified by the Kumari Madhuri Patil-II26 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. 22 Dayaram v. Sudhir Batham & Ors. (supra) 23 (supra) 24 (1995) 4 SCC 32 25 (supra) 26 (supra) DIST. COLLECTOR SATARA & ANR. v. MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.] We have already noticed that 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. Thus, the composition of the Committee was made in pursuance of the specific statutory power. It was also to subserve the larger issue of setting up different committees by decentralizing the process, to meet the requirement of verification of the certificates. 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.27 The challenge before us 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 Patil28 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.29 Requirement of the Vigilance Cell Report
27. 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 Patil30 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. We have, however, no hesitation to 27 Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India (UOI) and Ors., AIR 1986 SC 515. 28 (supra) 29 Khambhalia Municipality v. State of Gujarat, AIR 1967 SC 1048 30 (supra) emphasise the importance of proper verification of such certificates to be issued, and 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. We have no doubt that this is a process which will be so followed under the Rules of 2012.
28. 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 us, 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, we are in complete agreement with the view of the High Court. The exercise carried out in the interregnum period, between 30.7.2011 (when the Notification was issued) and 31.8.2012 (when the Rules of 2012 were notified) leaves us, as the High Court, with grave doubt, and we are of the view that 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.
29. 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, we have no doubt that the exercise so undertaken cannot be upheld and has to be quashed with the direction to carry out the aforesaid exercise afresh.
30. The further development, by the enactment of the Rules of 2012 is that the said mechanism is now available within the enacted Rules, itself. Even the contesting respondents could not seriously dispute that the proper methodology, now, would be for a fresh verification exercise to be carried out under the Rules of 2012. Learned counsel for the State Government could also not seriously dispute this exercise to be undertaken under the Rules of 2012, but only expressed concerns about the certificates already having been issued and the complication which would be created by forthwith withdrawal of those certificates. DIST. COLLECTOR SATARA & ANR. v. MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]
31. We do appreciate the problem aforesaid and are, thus, of the view that the fresh exercise has to be undertaken within a period of six (6) months from today, 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. We may, however, hasten to add that, in view of the case pointed out to us, 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. It may be added that 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.
32. We may note that one of the grievances raised by the affected private respondents before us is that though they were impleaded as respondents, no notice was every issued and their matter was tagged with the main matter and decided, in their absence. Thus, they had no opportunity to put forth their point of view. In the same line, learned counsel for the State of Maharashtra sought to place before us the problem where the directions now being issued to be carried out are with respect to parties who are not before us and may be affected by this exercise.
33. We are conscious of the aforesaid fact. However, it is impractical to have all the affected parties before us. Different groups in representative capacities are before us. In terms of the impugned order, all the original certificates issued by the specially constituted Scrutiny Committees under the Government Resolution dated 30.7.2011 were to be recovered from the respective persons and were to be destroyed forthwith for which three months time was granted. We have, in fact while setting aside the impugned order on the question of law, directed only re-verification of the certificates as to whether they are in accordance with law on account of the doubts cast over them, as per what we have set out aforesaid. The stand of the aggrieved parties by the impugned judgment was, in fact, represented by the appellant before us. Moreover, at the time of the fresh exercise of the validity certificate being issued, naturally the persons who have been issued these certificates would be issued notice. In our view that would suffice and the aforesaid directions are also necessary to do complete justice inter se the parties, for which we have the benefit of Article 142 of the Constitution. It will be for the Caste Scrutiny Committee to carry out the aforesaid exercise, while notifying the parties concerned, through appropriate public notices in this behalf. Directions we have now issued would 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.
34. We end with the hope that the aforesaid exercise would sub- serve the very purpose for bringing the Act of 2000 into force, and confer benefits only on the entitled persons, while weeding out the non- entitled persons.
35. The appeals are accordingly allowed, leaving the parties to bear their own costs. Devika Gujral Appeals allowed. DIST. COLLECTOR SATARA & ANR. v. MANGESH NIVRUTTI KASHID [SANJAY KISHAN KAUL, J.]