Chetan vs The State Of Maharashtra
2012 Latest Caselaw 136 Bom

                        1             wp2916.09

                                           
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                            
                WRIT PETITION NO.2916 OF 2009




                                    
     Chetan s/o Chandrashekhar Swami,
     Age: 23 years, Occ: Student,
     R/o. Pratibha Nagar, Kaij Road,
     At Post Taluka Kille Dharur,




                                   
     District Beed.                       ...PETITIONER 

            VERSUS             




                           
     1.   The State of Maharashtra,
          Through its Secretary,
                 
          Social Welfare, Cultural Affairs
          Tourism and Sports Department,
          Mantralaya, Mumbai-32.
                
     2.   The SC, VJNT,OBC and Special Backward
          Class Caste Certificate Scrutiny
          Committee, Aurangabad Division,
          Aurangabad.
      

          (Through its Member Secretary,
          and Divisional Social Welfare
   



          Officer, Aurangabad).

     3.   The Tahasildar & Taluka
          Executive Magistrate,





          Dharur, Dist. Beed.             ...RESPONDENTS

                         ...
     Mr. H.I. Pathan, Advocate for petitioner.
     Mr. K.B. Choudhari, A.G.P. for respondents.





                          ...
         
                            CORAM: R.M. BORDE &
                                   S.S. SHINDE, JJ.

DATE : 8TH OCTOBER, 2012

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JUDGMENT : [PER S.S. SHINDE, J.]

. Rule. Rule made returnable forthwith.

With consent of the parties, the petition is taken

up for final disposal at admission stage.

2. This writ petition takes exception to the

decision of the SC, VJNT, OBC and Special Backward

Class Caste Certificate Scrutiny Committee,

Aurangabad Division, Aurangabad dated 19th

November, 2008, thereby invalidating the caste

claim of the petitioner.

. It is the case of the petitioner that, he

belongs to "Malajangam" scheduled caste, as it is

evident from the caste certificate issued by the

Tahsildar and Taluka Executive Magistrate, Dharur

District Beed dated 19th July, 1994. It is further

case of the petitioner that, his caste claim was

forwarded for verification to respondent No.2 -SC,

VJNT, OBC and Special Backward Class Caste

Certificate Scrutiny Committee, Aurangabad

Division, Aurangabad (for short, "Committee") some

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time in October, 2000 by the Principal of Dayanand

College, Latur. The matter was pending for

Committee for verification. Therefore, the

petitioner was required to seek admission for

Engineering Course from open category for want of

his caste validity certificate.

. It is further case of the petitioner

that, respondent No.2 Committee refused to verify

the claim of the petitioner, therefore, he

preferred Writ Petition being Writ Petition

No. 6345 of 2005. This Court, by its order dated

Committee to verify the claim of the petitioner.

The petitioner appeared before the committee and

submitted various documents in support of his

caste claim. However, respondent No. 2 Committee,

without considering the documents on record and

merely observing that, all documents are of recent

origin, invalidated the caste claim of the

petitioner by its order dated 31st January, 2008.

4 wp2916.09

3. The petitioner challenged the said

decision of the respondent No. 2 Committee dated

31st January, 2008 by way of filing Writ Petition

being Writ Petition No. 2032 of 2008. This Court,

by order dated 15th July, 2008 set aside the

decision of the Committee dated 31st January, 2008

and remanded the matter back to the Committee to

verify the caste claim of the petitioner afresh.

This Court, while allowing the petition,

transferred the matter from the Committee No. 2 at

Latur to the Committee No. 1 at Aurangabad.

. It is further case of the petitioner

Committee and submitted as many as 24 documents in

support of his caste claim. The petitioner also

filed his written say-cum-arguments before the

Committee. The home inquiry of the petitioner

through Vigilance Cell was conducted by respondent

No. 2 Committee. The vigilance cell report reveals

that, the inquiry conducted by the vigilance

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officer has found the affinity of the petitioner

is of "Malajangam" caste.

4. Learned Counsel appearing for the

petitioner vehemently argued that, the documents

Committee coupled with vigilance cell report,

would clearly demonstrate that, the petitioner

belongs to "Maljangam" caste. It is submitted

that, the observation of the Committee regarding

and 14 are in different ink and change of

handwriting, is without any justification and

basis. As such, there is no evidence or affidavit

of the concerned authority to whom custody of

record belongs, so as to infer that, the entry of

caste in the said record is made by manipulating

or made later on for the purpose of use in

verification of the caste claim of the petitioner.

It is further submitted that, the caste validity

certificate of Sachin Malaya Swami, cousin brother

of petitioner from paternal side, would clearly

6 wp2916.09

supports the case of the petitioner that, the

petitioner also belongs to caste "Malajangam". It

is submitted that, the Committee has discarded the

entry of caste in service record of father of

petitioner Chandrashekhar Swami observing that,

the entry in the service record is recorded on the

basis of caste certificate. On the contrary, the

record shows that, the entry in service record was

made at the time of joining in service of father

of the petitioner. It is further submitted that,

respondent No. 2 Committee has not considered the

documents on record, so also, vigilance cell

report and discarded them on the ground of

documents being recent origin. It is submitted

that, there is no single document which shows

contrary entry other than "Malajangam". Two

documents i.e. sale deed in the year 1947 and

extract of death register of village Padoli,

Taluka Kallam of the year 1342 Fasali i.e. 1932

are the documents prior to 1950. So also,

vigilance report also disclose that affinity test

of "Malajangam" Scheduled Caste has been rightly

7 wp2916.09

match with the custom and trait of the

petitioner's caste. It is further submitted that,

document at Serial No. 14 is in Modi language of

the year 1342 Fasali is entry of death of the

cousin grand father of the petitioner by name

Bhimashankar who was died on 25th September, 1932.

The age of Bhimashankar at the time of his death

was between 20 to 30 years. The observation of the

Committee regarding the said document that, the

caste entry is in different ink and different

handwriting cannot be accepted for the reason

that, the document is in the custody of the Tahsil

office and there is no access to manipulate the

document even if any person intend to do so. It is

further submitted that, the Committee did not

appreciate the sale deed at Serial No. 13 which is

executed in the year 1947 (1367 Fasali) on

Government stamp and same was purchased on 24th

February, 1947 by the executant Kadayya Ramling

Swami. Though this document is not registered, can

be considered for the purpose of verification of

the caste claim of the petitioner. It is further

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submitted that, the Committee has not appreciated

documents on record in its proper perceptive and

discarded voluminous documents without there being

any adverse material on record. Therefore, the

Counsel appearing for the petitioner would submit

that, the writ petition deserves to be allowed.

5. On the other hand, learned A.G.P.

appearing for the respondents vehemently opposed

the prayer in the petition and relying upon the

affidavit in reply, prayed for dismissal of the

writ petition. It is submitted that, the reasons

assigned by respondent No. 2 Committee in support

of its decision are based upon the documentary

evidenced and therefore, this Court should be

loath in interfering in the decision of respondent

No. 2 Committee.

6. With the able assistance of learned

Counsel appearing for the respective parties, we

have perused pleadings in the petition, annexures

thereto, reply filed by the respective respondents

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and original record made available for perusal and

we are of the considered opinion that, the

decision of respondent No. 2 Committee

invalidating the caste claim of the petitioner

cannot sustain for more than one reasons which are

discussed herein below.

7. The petitioner herein produced as many as

14 documents before respondent No. 2 Committee.

The said documents are mentioned herein below for

ready reference.

      

     SrN Details of                     Caste            Relation with
     o   Evidence.                      Entry.           Candidate.
   



     1    Caste   Certificate   of   the Malajangam      Self.
          candidate   issued   by 
          Tahsildar   Dharur   No.5264 
          dated 02/08/1994.





     2    Admission extract issued by Malajangam         Self.
          Head       Master       CPS 
          Killedharur.
     3    School   leaving   Certificate Malajangam      Self.
          issued   by   Head   Master   CPS 
          Killedharur   No.   1154   dated 





          16/06/2004.
     4    School admission extract of Malajangam         Father.
          Chandrashekhar   Shankarrao 
          Swai   issued  by  Head  Master 
          Zilla   Parishad   (Priv), 
          School   Janegaon,   Tal.   Kej, 
          Dist.Beed No. 117 Admission 
          dated 15/06/1966.





                              10                 wp2916.09

     5    Caste certificate of father Malajangam          Father.
          of   candidate   issued   by 
          Tahsildar   Bhoom   NO.580 




                                                                     
          dated 12/10/1998.
     6    First   page   extract   of Malajangam          Father.
          Service   book   of   father   of 




                                            
          candidate                  Shri. 
          Chandrashekar   Shankarrao 
          Swami.
     7    Caste   Validity   Certificate Malajangam       Cousin 
          of   Sachin   Malyya   Swami                    Sister.




                                           
          issued   by   Div.   Caste 
          Certificate   Verification 
          Committee.
     8    School   Leaving   Certificate Malajangam       Brother.
          of   Ketan   Chandrashekhar 




                                 
          Swami issued by Head Master 
          Janta Vidyalaya Killedharur 
                     
          No.3105   admission   date 
          22/.06/98.
     9    Admission   extract   of Malajangam             Sister.
                    
          Ms.Rupali   Chandrashekhar 
          Swami issued by Head Master 
          Janata            Vidyalaya 
          Killedharur, Admission date 
          26/06/1995.
      

     10   School   Admission   SGP   of Malajangam        Uncle.
          Amar Shankarrao Swami dated 
   



          16/06/1992   and   T.C.   of 
          Shahu   Mahavidyala   Letter 
          dated 02/07/1995.
     11   School   leaving   Certificate Malajangam       Uncle.
          of   Vivek   Vishwanath   Swami 





          issued by Head Master Swami 
          Vivekanand   Vidyamandir, 
          Padoli,   admission   dated 
          16/06/1992.
     12   Death   Certificate   of Malajangam             Grand Father.
          Shankar Nirudya Swami dated 





          23/02/1986.
     13   Stamp paper having value of Malajangam          Great   grand 
          Rs.One   of   Asifya   Govt.   in               father.
          Urdu Language No.D-860220.
     14   Death   registration   extract Malajanam        Cousin   Grand 
          of   Bhimashankar   Nirudayya                   father.
          issued   by   Tahsildar   Kalamb 





                             11                wp2916.09

          District   Osmanabad   death 
          date 25/09/1942.




                                                                   

8. Upon careful perusal of above mentioned

documents, it is abundantly clear that, in all

these documents the caste of the petitioner and

also his father, grandfather, uncle and other

relatives is shown as "Malajangam".

. The documents at Serial Nos. 1 to 3 are

the school record of the petitioner herein, in

which caste is recorded as "Malajangam". The

documents at Serial Nos. 4 to 6 are in respect of

father of the petitioner. In school record and

service record of the petitioner's father, caste

"Malajangam" is shown in column of caste. The

document at Serial No. 7 is Caste Validity

Certificate of one Mr. Sachin Malyya Swami issued

by Divisional Caste Certificate Verification

Committee. The petitioner has proved that, the

said Sachin Malyya Swami is his cousin brother. It

is relevant to mention that, there is nothing on

record to dispute relationship between Mr. Sachin

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Malyya Swami and the petitioner herein.

. The document at Serial No. 8 school

leaving certificate of one Mr. Ketan

Chandrashekhar Swami, who is brother of

petitioner. The school leaving certificate shows

the caste of the brother of the petitioner as

"Malajangam". The document at Serial No. 9 is

admission extract of Ms. Rupali Chandrashekhar

Swami, who is sister of the petitioner. In her

school record also, caste is recorded as

"Malajangam". In the school record of uncle of the

petitioner namely Amar Shankarrao Swami also, his

caste is recorded as "Malajangam". The death

certificate of Shankar Nirudya Swami, grand father

of the petitioner shows the caste as "Malajangam".

In the document at Serial No. 13 Stamp paper

having value of Rs. One of Asifya Government in

Urdu Language, the caste of the great grandfather

of the petitioner shows as "Malajangam". The

document at Serial No. 14 death registration

extract of cousin grand father of the petitioner

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namely Bhimashankar Nirudayya issued by Tahsildar,

Kalamb District Osmanabad dated 25th September,

1942 also shows caste "Malajangam". Therefore, on

careful perusal of the documents which were

submitted before respondent No. 2 Committee, it is

abundantly clear that, in all the documents, in

column caste entry is shown as "Malajangam". There

is no any contra evidence brought on record by

the respondents even to suggest slightly that,

petitioner does not belong to caste "Malajanam".

9. The documents at Serial Nos. 13 and 14 in

respect of great grand father and cousin grand

father of the petitioner would unequivocally

indicate that, in the said documents the caste is

mentioned as "Malajangam". These documents assumes

importance in the facts of the present case, since

there is no any contra evidence brought on record

by the respondents to show that, the petitioner

does not belong to the caste "Malajangam".

10. The petitioner is right in contending

that, the case validity certificate of his cousin

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brother namely Sachin Malyya Swami is placed on

record before Committee and there is no reason why

same should not be accepted as authentic proof to

accept the claim of the petitioner that he

belongs to caste "Malajangam".

11. Apart from discussion herein above, on

careful perusal of vigilance cell report, it is

abundantly clear that, the said report clearly

lends support to the case of the petitioner that,

he belongs to "Malajangam" caste. The documentary

evidence produced by the petitioner, coupled with

vigilance cell report, would unequivocally lead to

the only conclusion that, the petitioner belongs

to "Malajangam" caste. Respondent No. 2 Committee

has not adverted to the vigilance cell report and

on erroneous appreciation of documents produced on

record, has rejected the claim of the petitioner

that, he belongs to "Maljangam" caste. When there

is no contra evidence brought on record, there was

no reason for the Committee not to accept the

claim of the petitioner that, he belongs to

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"Maljangam" caste. In all 14 documents are

produced on record coupled with vigilance cell

report, would unequivocally indicate that, the

claim of the petitioner that, he belongs to caste

"Maljangam", is genuine.

. At this juncture, it would be worthwhile

to place reliance upon the exposition of the

Supreme Court in the case of Gayatrilaxmi Bapurao

Nagpure vs. State of Maharashtra and others,

reported in (1996) 3 SCC 685 in which, the Hon'ble

Supreme Court held ;

"The rejection of the appellant's

claim especially when there is no

other evidence placed contra to suspect the proof produced by the appellant and without appreciating

the vital document placed before the Committee, was not correct. The High Court also erred in dismissing the writ petition filed by the

appellant by simply accepting the conclusions reached by the Committee without appreciating the probative value of the documents placed before

16 wp2916.09

it. In this case, except the documents produced by the appellant,

nothing has been produced by the authorities concerned to arrive at

different conclusion. By a wrongful denial of the caste certificate to the genuine candidate, he/she will

be deprived of the privileges conferred upon him/her by the Constitution. Therefore greater care

must be taken before granting or

rejecting any claim for caste certificate. Though in cases of

this type, the burden heavily lies on the applicant who seeks such a certificate, but that does not mean

that the authorities have no role to play in finding out the correctness

or otherwise of the claim for issue of a caste certificate. The

authorities concerned must also play a role in assisting the Committee to arrive at a correct decision."

12. Upon careful perusal of the documents,

genealogy and vigilance cell report, we are of the

considered opinion that, the decision of

respondent No. 2 Committee, invalidating the claim

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of the petitioner that, he belongs to "Malajangam"

caste is erroneous and contrary to the record and

particularly, in absence of any contra

material/evidence brought on record by the

respondents. Therefore, we set aside the impugned

decision of respondent No. 2 Committee dated 19th

November, 2008 at Exhibit-V and allowed the writ

petition.

13.

In the result, the writ petition is

allowed. The impugned decision of respondent

No. 2 Committee is quashed and set aside. It is

hereby declared that, the petitioner belongs to

"Malajangam" caste and the Scrutiny Committee is

hereby directed to issue caste validation

certificate to the petitioner. Rule made absolute,

accordingly. No order as to costs.

          sd/-                             sd/-
     [S.S. SHINDE, J.]                [ R.M. BORDE, J.]





     sut/OCT12