Leave to amend to add - Scrutiny Committee for Verification of Caste Certificates, Office of Commissioner, Tribal Development, Bira Munda Bhavan, Sector-10A, Gandhinagar [hereinafter referred to as “Scrutiny Committee”], as respondent No.4. 2. Heard Mr. Desai, learned advocate for the petitioner, and Mr. Shah, learned AGP, for the respondents.
3. Rule. Mr. Shah, learned AGP, has waived service of process of Rule on behalf of the respondents, including the newly added respondent No.4.
3.1 At the request of Mr. Desai, learned advocate for the petitioner, and with consent of Mr. Shah, learned AGP for the respondents, the petition is taken up for hearing and final decision today.
4. Since in light of the submissions made by learned advocate for the petitioner and learned AGP, the petition can be disposed of on a limit ground, viz. affording opportunity of hearing to the petitioner in light of the relevant documents which are part of record of present petition but could not be placed by the petitioner before the competent authority/the Scrutiny Committee, i.e. respondent No.4, at the relevant point of time, detailed discussion about the factual aspects and/or rival contentions raised by the petitioner and learned AGP is not necessary and therefore not made in present order.
5. The petitioner has come out with present petition seeking below mentioned relief:-
“6(A) The Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 06.04.2011 passed by the respondent no.2 at Annexure-A to this petition.”
6. The petitioner has claimed that he belongs to Schedule Tribe viz. Rabari (residing in Ness in the forests of Alech, Gir and Barada), which is duly included in the notification dated 29.10.1986. It is also claimed that having regard to the factual aspects, the caste certificate was issued in favour of the petitioner by the competent authority, however, subsequently, in view of the order dated 6.4.2011, the said certificate has been cancelled. The petitioner is aggrieved by the said decision, hence, present petition.
7. Mr. Desai, learned advocate for the petitioner, has submitted that the petitioner belongs to Schedule Tribe viz. Rabari (in Nesses area) residing in Ness in the forests of Alech,Gir and Barada and petitioner's forefather were residing in Ness named “Dhed Virda Ness”. He also submitted that so as to examine the factual aspects and take necessary decision, including the decision regarding claims/applications for caste certificate, a Committee headed by one Mr. Malkan was constituted by the State Government. Mr. Desai also submitted that relevant and supporting documents were produced by the petitioner's father before the said Committee of Mr. Malkan and thereafter, Vigat Darshak Card was issued on 9.10.1995 in the name of petitioner's father. Subsequently, on the basis of the said Vigat Darshak Card, the petitioner made application for issuance of caste certificate. After taking into account the said Vigat Darshak Card, the competent authority issued caste certificate in favour of present petitioner on 14.7.2006. Mr. Desai, learned advocate for the petitioner, has submitted that subsequently, the Scrutiny Committee examined the relevant details and documents in various cases, including the case of present petitioner and the said Scrutiny Committee appears to have submitted its report to the Commissioner. On the basis of the said report of the Scrutiny Committee, the Commissioner passed, and conveyed to the petitioner, the impugned order dated 6.4.2011 whereby the caste certificate issued to the petitioner has been cancelled.
7.1 During his submissions, Mr. Desai, learned advocate for the petitioner, relied on certain affidavits which are said to have been made by the petitioner's grand father and some of the co-residents in the Ness.
Mr. Desai has admitted that at the relevant time, the said affidavits were not submitted on record before the Scrutiny Committee. He also claimed that in the facts of the case, the said affidavits are very relevant and support his case. He, however, also made grievance that the report of the Scrutiny Committee was not and has not been supplied to the petitioner even along with the order passed by the Commissioner and the petitioner received the said report for the first time when the respondent placed it on record of present petition with their affidavit. Mr. Desai has submitted that apart from the support of Vigat Darshak Card, the said affidavits also support the case of the petitioner that the petitioner's parents and his forefather were residing in the said Ness viz. “Dhed Virda Ness” and therefore, the caste certificate was issued in favour of the petitioner and there was no justification to cancel the said caste certificate.
8. Mr. Shah, learned AGP, opposed the petitioner's claim and submitted that the Commissioner has passed the impugned order after considering all relevant aspects and after taking into account the report submitted by the Scrutiny Committee. He submitted that the order is based on enough material and relevant documents and is passed after considering the explanation and all objections raised by the petitioner before the Scrutiny Committee.
8.1 Mr. Shah, learned AGP, however, could not refute two important aspects involved in the petition viz. (i) the report of the Scrutiny Committee was not supplied to the petitioner even along with the impugned order passed by the Commissioner; and the fact that (ii) the affidavits (which are placed on record of present petition) were not available before the Scrutiny Committee.
8.2 Besides the aforesaid two aspects, Mr. Shah, learned AGP, also could not dispute the submission that the said affidavits would provide substantial support to the petitioner's claim and deserve to be scrutinized and examined by the Scrutiny Committee.
8.3 Therefore, it appears appropriate that the said affidavits and other material available either with the petitioner or the department may receive consideration by the Committee.
9. In this view of the matter, it appears from the submissions by Mr. Desai, learned advocate for the petitioner, and Mr. Shah, learned AGP, that it may not be necessary to enter into detailed discussion about various factual aspects and the contentions raised by the petitioner against the impugned order and/or the justification in support of the impugned order and/or the report of the Scrutiny Committee urged by learned AGP.
It also appears that, at this stage, the petition can be disposed of with the direction to respondent No.4 – Scrutiny Committee to reexamine the case of the petitioner, particularly in light of the affidavits which are placed on record of present petition.
If the said opportunity is made available to the petitioner before the Scrutiny Committee, the petitioner's grievance may be considered from all perspective and petitioner may not feel deprived of opportunity of complete hearing and chance of submitting all relevant documents for consideration by Committee.
The Scrutiny Committee would be the proper authority to examine and scrutinize the said documents and if necessary, to undertake further inquiry/ investigation, as may be considered necessary, in light of the said affidavits.
Therefore, instead of entering into detailed discussion about the contentions and/or the documents placed on record by the petitioner and the respondent authorities, it appears appropriate to dispose of present petition with below mentioned order and directions:-
9.1 For the aforesaid purpose, i.e. so as to provide opportunity of hearing before the Scrutiny Committee in light of the affidavits placed on record of present petition and so as to enable the Scrutiny Committee to reexamine the material in light of the said affidavits and other material on which the petitioner may seek to rely, the impugned order dated 6.4.2011 is set aside and the matter is remitted to the respondent No.4 – Scrutiny Committee. However, with a clarification that until the Scrutiny Committee submits the report and the competent authority pass fresh order, the petitioner shall not claim any benefit in any manner and for any purpose and anywhere on the basis of the said caste certificate, which was initially issued in favour of the petitioner and came to be cancelled by the impugned order.
9.2 The case is remitted to the Scrutiny Committee for reverification in light of the said affidavits (page 140 to 143 of petition) and other material which may be placed for consideration by petitioner and department. The respondent No.4 – Scrutiny Committee is directed to take up petitioner's case for reconsideration and reexamination in light of the affidavits of (i) Mr. Rabari Hirabhai Arjanbhai Garachar and (ii) Mr. Rabari Bhikhan Jivabhai Bhit [Page – 140 to 143 of the petition] and other material which may be submitted by the petitioner and department.
9.3 The petitioner shall forward, in advance, by Registered Post, the affidavits on which reliance is placed at the time of hearing of present petition and any material on which the petitioner seeks to rely to the respondent No.4 – Scrutiny Committee as well as the respondent No. 2 – Commissioner within 1 week from receipt of certified copy of present order.
9.4 After receipt of said material from the petitioner, the Scrutiny Committee will inform the petitioner the date of hearing.
9.5 The Scrutiny Committee will inform the date and time of hearing to the petitioner and the petitioner will make himself available and will attend the hearing on the said date.
9.6 The respondent No.4 – Scrutiny Committee will grant opportunity of hearing to the petitioner and take into account the submissions in light of the said affidavits and the Vigat Darshak Card.
9.7 If need be, the Scrutiny Committee may call for further material / documents from the petitioner so as to arrive at proper decision.
9.8 It would be open to the petitioner and the department to place any other material / document for consideration by the Scrutiny Committee.
9.9 It will be open to the Scrutiny Committee to call the deponents of the said affidavits for examination to determine whether to rely on the affidavits or not and/or to call for further material.
9.10 It is clarified that any adjourned will not be asked for by the petitioner and granted by the Scrutiny Committee and if the petitioner fails to appear before the Scrutiny Committee on the specified time and date, it will be open to the Scrutiny Committee to pass appropriate order, after considering the material available on record before it.
With the aforesaid observations, clarifications and direction, present petition stands disposed of. Rule is discharged.
Direct service is permitted.
(K.M.Thaker, J.) kdc