Jamadar Mehaboob Ghudubai vs State Of Maharashtra Through Its ...
2016 Latest Caselaw 7371 Bom

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    Urmila Ingale




                                                                                           
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION




                                                                   
                                             WRIT PETITION NO. 11394 OF 2016

                     Jamadar Mehaboob Ghudubai                       .. Petitioner




                                                                  
                           Vs.
                     State of Maharashtra and ors.                 .. Respondents

                     Mr.Chintamani   Bhangoji   i/b   Mr.R.K.Mendadkar,   for  the 
                     Petitioner.




                                                        
                     Ms.R.A. Salunkhe,  AGP for State.
                                              ig   CORAM : NARESH H. PATIL &
                                                                  M.S.KARNIK, JJ.
                                            
                                                     
                                              RESERVED ON:  08th DECEMBER, 2016
                                       PRONOUNCED ON :  16th DECEMBER, 2016
                 


                     JUDGMENT (PER M.S.KARNIK, J.) :

. Rule, returnable forthwith. Heard finally by consent

of the parties.

2. The petitioner challenges an order dated

22/08/2016 passed by the Divisional Caste Certificate Scrutiny

Committee No.1 - Solapur (hereinafter referred to as the

'Committee' for short) invalidating caste claim of the petitioner

as belonging to 'Julah' caste which is notified as Other Backward

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Classes (for short 'OBC') in the State of Maharashtra.

3. The petitioner claims to profess Islam religion and

the persons so professing Islam religion are interalia called as

'Muslim' or 'Musalman'. In school, birth and death records, caste

is not mentioned. According to the petitioner, since status of

OBC is determined based on occupation, the petitioner has

produced voluminous evidence to show that petitioner's family

was carrying on traditional occupation of 'weaving'. Based on

the evidence so produced, the Competent Authority was pleased

to issue a caste certificate dated 12/10/2015 certifying that he

belongs to 'Julah' caste which is notified as OBC in the State of

Maharashtra.

4. The petitioner on the basis of the said caste

certificate contested the election to the post of Member of ward

No.2 of the Najik Chincholi, Tal. Akkalkot, Dist. Solapur which

was reserved for backward class of citizens. The petitioner was

declared as elected in Gram Panchayat election. The petitioner

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moved respondent No.2 - Committee for verification of his caste

claim.

5. The Committee referred caste claim of the petitioner

for vigilance enquiry. The Vigilance Cell submitted a report

dated 07/05/2016 after recording the statement of elderly

residents namely Shri Anandappa Bhimraya Parit and Shri

Manikrao Bhimrao Waghmode who stated that ancestors of the

petitioner were in the occupation of weaving and they regard

them as belonging to 'Julah' caste. Thus, the Vigilance Cell

concluded that traditional occupation of the family of the

petitioner is weaving and the report was in favour of the

petitioner.

6. The Committee issued show cause notice dated

06/08/2016 stating that the petitioner had not submitted any

documentary evidence prior to 1967 to prove his caste claim and

traditional occupation and called upon the petitioner to show

cause why his caste certificate should not be invalidated.

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7. The petitioner by his reply pointed out that insofar

as Islam religion is concerned, there is no question of there

being any documentary evidence which shows caste as 'Julah'.

He, however, placed reliance on certain documents dated

15/05/1957 & 28/11/1959 to show that certain material was

purchased by his father for weaving purpose.

8.

The Committee by the impugned order did not

agree with the Vigilance Cell report and for the reasons recorded

invalidated the caste claim of the petitioner.

9. Learned Counsel appearing for the petitioner placed

reliance on the decision of this Court in the case of Smt.Bismilla

Mohammedsab Sayyed (Mujawar) @ Bismilla Allabaksh

Shikkalgar Vs. Divisional Caste Certificate Committee No.1,

Solapur in Writ Petition No. 10577 of 2013 dated

21/02/2014 to contend that in case of Mohameddans, there

was no recognised castes or sub-castes and therefore, as in the

case of Hindus, there is no likelihood of finding any entry of the

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caste of a person as Mohameddans religion in old records. This

Court considered the provisions of Rules 12 & 13 of 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 Rules, 2012 (for short 'the said Rules') The

relevant portion of paragraph 6 reads thus :

"...In the present case, the Vigilance Cell report is on record. Clause (d) of sub Rule 1 of the Rule 13 provides that the

Vigilance Cell should collect information including sociological, anthropological, ethnological and genetical traits of the relevant Caste. In the present case, this exercise was necessary as we have already observed earlier that there is no likelihood of any entry of caste recorded in

old record in the case of Mohameddans. It was necessary for the Vigilance Cell to make an eqnuiry in terms of clause

(d). An enquiry should have been made to ascertain the traditional occupation of the Mujwars. We have perused the Vigilance Cell report. We find that no such exercise has been made. Perusal of the impugned order shows that even

the Caste Scrutiny Committee has not applied the affinity test. Therefore, we find that the entire approach of the Caste Scrutiny Committee is erroneous as in the facts of the case, the Caste Scrutiny Committee should have directed the Vigilance Cell to do the exercise under the provisions of Clause (d) of Sub Rule 1 of the Rule 13 the said Rules. The

Caste Scrutiny Committee ought to have held the appropriate enquiry in the present case......"

10. Learned Counsel appearing for the petitioner also

contends that the impugned order passed by the Committee is

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not in accordance with Sub-Rule 7 of the Rule 17 of the said

Rules which requires the Committee to give reasons before

discarding the Vigilance Cell report. According to the learned

Counsel for the petitioner, this Court in the case of Smt. Ashvini

Ramchandra Bhogam Alias Mrs.Ashvini Amer Ramane Vs.

State of Maharashtra and ors. in Writ Petition No. 5699 of

2016 dated 05/08/2016 has held that the detailed procedure

provided by the Rules clearly demonstrates that the Vigilance

Cell inquiry is not a mere formality but it meant to assist the

Committee for determining the caste claim and therefore, Sub-

Rule 7 of Rule 17 requires the Committee to give reasons before

discarding the Vigilance Cell report. In the present case, the

Committee has discarded the Vigilance Cell report by giving

reason that the same is not binding on the Scruitny Committee.

11. Learned AGP appearing for the Committee has

supported the order passed by the Committee. According to the

learned AGP, the Vigilance Cell report is not binding on the

Committee. Learned AGP submits that material placed on

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record is not sufficient to establish the caste claim of the

petitioner and therefore, the Committee has rightly come to the

conclusion that the petitioner's claim be invalidated.

12. Having considered the rival submissions, we are of

the view that petitioner's caste claim needs to be considered

afresh by respondent No.2 - Committee. The Committee while

discarding the report of the Vigilance Cell, except observing that

it is not in agreement with the Vigilance Cell report, has not

given any reason for discarding report of the Vigilance Cell

which is the requirement of Sub-Rule 7 of Rule 17 of the said

Rules. The Vigilance Cell report as it stood, favours the

petitioner and therefore, the Committee ought to have adverted

to the Vigilance Cell report.

13. We also find that Vigilance Cell has not carried out

enquiry as required by clause (d) of Sub-Rule 1 of Rule 13 which

provides that the Vigilance Cell should include information

including sociological, anthropological, ethnological and

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genetical traits of the relevant Caste. In the present case, this

exercise was necessary as there is no likelihood of any entry of

caste recorded in old record in case of Mohameddans. It was

necessary for the Vigilance Cell to make an enquiry in terms of

clause (d). Perusal of the impugned order shows that the

Committee has not applied the affinity test. This Court has

already considered the provisions of Rule 13 of the said Rules in

case of Smt.Bismilla Mohammedsab Sayyed (Mujawar) @

Bismilla Allabaksh Shikkalgar (supra). In this case also we

find that entire approach of the Caste Scrutiny Committee is

erroneous as in the facts of this case, the Caste Scrutiny

Committee should have directed the Vigilance Cell to do the

exercise under the provisions of clause (d) of Sub-Rule 1 of Rule

13 of the said Rules. The Caste Scrutiny Committee ought to

have held appropriate enquiry in the present case.

14. Considering the peculiar facts of the case, the Caste

Scrutiny Committee shall make adjudication within a time

bound schedule.

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Hence, we pass the following order.

O R D E R

i) The impugned order dated 22/08/2016 is quashed and set aside. Matter of caste verification is remanded to the

2nd respondent - Caste Scrutiny Committee.

ii) We direct parties to appear before 2nd respondent - Caste

Scrutiny Committee on 23/12/2016 at 11.00 a.m.

iii)

The Caste Scrutiny Committee shall call for fresh Vigilance Cell report in terms of Rule 13 and especially clause (d) of

Sub-Rule 1 of Rule 12 of the said Rules. The Caste Scrutiny Committee shall make a fresh adjudication in

accordance with law as expeditiously as possible and

preferably within a period 03 months from today.

15. All contentions of the parties on merits are kept

open.

16. Rule is made absolute in the above terms.

     (M.S.KARNIK, J.)                                      (NARESH H. PATIL, J.)