Aishwarya Sanjay Salve vs The State Of Maharashtra And ...
2016 Latest Caselaw 3538 Bom

                                                                       wp7446-15.odt
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD
                             WRIT PETITION NO. 7446 OF 2015




                                                                          
            Miss Aishwarya d/o Sanjay              ...         Petitioner 
            Salve Age 18 years, Occu; 




                                                  
            Student.  R/o Loni Khurda, 
            Brahmne Waste, Near Police 
            Station,  Tq.  Rahata,
            Dist. Ahmednagar




                                                 
            VERSUS

    1.      The State of Maharashtra
            Through Secretary, Social 




                                         
            Welfare Department, 
            Mantralaya, Mumbai 400 032
                                  
    2.  Divisional Caste Certificate 
        Verification Committee No.1,
                                 
        Nashik Division, Nashik,

    3.  The Principal,
        Pravara Kanya vidya Mandir &
      

        Kanishta Mahavidyalaya, Loni 
        Khurd, Tq. Rahata, 
   



        District Ahmednagar.

    4.      Directorate of Medical 
            Education and Research





            C/o Govt. Dental College & 
            Hospital Building, 
            St.George's Hospital Compound,
            Near V. T. Mumbai 400 001





    5.      Association of  Managements of  ...               Respondents 
            Unaided Private Medical and 
            Dental Colleges of Maharashtra
            268/70, Chandresh Bhuvan, 
            Ground floor, Room No. 9, 
            Shahid Bhagat Singh Road, 
            Fort, Mumbai 400 001

    Advocate for Petitioner:Mr B.N. Magar & Mr R. A. Shedge
    AGP for the Respondent State: Mr. S. S. Daud,
    Advocate for Respondent No.3: Mr. A. V. Hon

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                                     CORAM   :  R. M. BORDE & 
                                                 K. L. WADANE, JJ.




                                                                              
                                      DATE   :   1st July, 2016




                                                      
    JUDGMENT (Per Wadane, J.):                     

1. Rule. Rule made returnable forthwith.

2. By consent of the parties, taken up for final

hearing. We have heard the learned counsel for the

respective parties.

3.

By the present petition, the petitioner has

challenged the order passed by respondent No.2

Divisional Caste Certificate Verification Committee on

20th December, 2014 by which the caste claim of the

petitioner is invalidated.

4. The petitioner is a student. According to the

petitioner, she belongs to Hindu Mahar, Scheduled

Caste. The Special Land Acquisition Officer No.9,

Ahmednagar had issued Caste certificate in favour of

the petitioner on 12th June, 2009. The petitioner

states that there are entries of Mahar caste in the

school record of the petitioner as well as school

record and revenue record of her grandfather and caste

validity certificate of her uncle namely Vijay Shamrao

Salve in support of her caste claim.

wp7446-15.odt

5. The caste claim/certificate of the petitioner

was referred to respondent No.2 committee by respondent

No.3 college where the petitioner completed her Higher

Secondary Education. The committee, after preliminary

scrutiny into the caste claim of the petitioner,

referred an application to the Vigilance Cell for

conducting domestic enquiry. The Vigilance Cell

submitted its report to the Respondent Committee upon

conducting enquiry on 31.03.2014. Relying upon the

findings of the vigilance cell, the respondent

Committee has invalidated the caste claim of the

petitioner.

6. We have perused the documents produced by the

petitioner in support of her caste claim before

respondent No.2- Committee. We have also perused the

report of the Vigilance Cell and the reasons recorded

by respondent No.2 Committee while rejecting the caste

validation claim of the petitioner. On perusal of the

same, it appears that respondent No.2 Committee has

relied upon the report of Vigilance Cell in which it is

reported that though there is mentioning of caste

Harijan and Mahar, names of great grandfather of the

petitioner is of Christian type. Last rites of

grandfather and cousin grandfather, uncle of the

wp7446-15.odt petitioner were performed as per Christian faith.

photograph of the tomb(kabar) where uncle of the

petitioner was buried was taken by the Vigilance

Officer and they found Cross of Christ on the Tomb and

name Balasaheb Salve was written. Secondly, in the

house of the petitioner, there was photograph of her

grandfather below which name Christ Shamrao Dada Salve

was written and his last rites were reported to be

performed as per Christian faith. Marriage of father of

petitioner was sermonized as per Christian religion.

The Vigilance Cell found the total Christian

atmosphere in the house of the petitioner. Respondent

No.2 Committee, by relying upon the circumstances

appearing in the report of the Vigilance Cell, has

invalidated the caste claim of the petitioner.

7. On scrutiny of the reasons recorded by the

respondent Committee, it appears that the respondent

Committee has taken into consideration irrelevant

aspects to determine the caste claim of the petitioner.

On scrutiny of the documents produced by the petitioner

before the respondent Committee, it appears that

various school leaving certificates, caste

certificates, revenue record like 7x12 extracts, are

placed on record. Caste certificate dated 10.07.1987

wp7446-15.odt shows that uncle of the petitioner belongs to Hindu

Mahar caste. Caste certificate of uncle of the

petitioner namely Vijay Shamrao Salve is validated as

Hindu- Mahar by the Committee on 30.03.2014. There is

communication dated 09.06.2014 by a Charch from

Pravaranagar that petitioner and her family have never

baptized themselves to Christian religion. There are

also old revenue record and school record of close

relatives of the petitioner showing entires of Mahar

caste. There is no reason to disbelieve the school

record particularly, when the entries in the school

record are too old. In the school leaving certificate

of the petitioner issued by the School, her caste is

recorded as Hindu Mahar. So, looking to the entire

material on record, we are are of the opinion that

documentary evidence produced in support of the caste

claim of the petitioner are sufficient to hold that

petitioner is belonging to Mahar caste.

8. It appears that, the respondent Committee has

taken into consideration the irrelevant factor while

determining the caste claim of the petitioner. There

is no evidence/material on record to conclude that

the petitioner has adopted Christian religion and she

does not belong to Hindu religion, Mahar caste.

wp7446-15.odt

9. It is contended on behalf of the petitioner that

the view taken by the Scrutiny Committee is absolutely

inconsistent with the law laid down by the High Court

as well as the Supreme Court. It is contended that

there is no evidence coming forth in respect of

adoption of Christianity either by the father of the

petitioner or her family. The petitioner has not

relinquished Hindu religion and has not adopted

Christian religion at any point of time. On the other

hand no record is placed before the committee to

conclude that the family of the petitioner has been

excommunicated and they have snapped ties with

Hinduism. Conversion, if any, is only nominal and for

all practical purposes the family belongs to Hindu

religion. It is further pointed out that the

disadvantages which are peculiar to Scheduled Caste,

which is sadly a feature of Hindu religion, continue

and the family faces such disadvantages and

difficulties faced by the lower castes from amongst

Hindus.

10. In this context reliance can be placed on a

judgment in the matter of C.M. Arumugam v. S. Rajgopal

and others reported in (1976) 1 SCC 863. In paragraph

no. 12 of the judgment, the Supreme Court has observed

wp7446-15.odt thus :

12. It seems that the correct test for determining this question is

the one pointed out by this Court in Chatturbhuj Vithaldas Jasani v.

Moreshwar Prasahram. Bose, J., speaking on behalf of the Court in this case pointed out that when a question arises whether conversion operates as a breakaway from the

caste , what we have to determine are the social and political consequences of such conversion and that, we feel, must be decided in a

common sense practical way rather than on theoretical and theocratic

grounds. The learned Judge then proceeded to add :

Looked at from the secular point of view, there are three factors which have to be considered : (1) the reactions of the old body, (2) the intentions of the

individual himself, and (3) the rules of the new order. If the old

order is tolerant of the new faith and sees no reason to outcaste or excommunicate the convert and the individual himself desires and

intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political

rights of the old body, the views of the new faith hardly matter.

What is, therefore, material to consider is how the caste looks at the question of conversion. Does it outcaste or excommunicate the convert or does it still treat him as continuing within its fold despite his conversion: If the convert desires and intends to

wp7446-15.odt continue as a member of the caste and the caste also continues to treat him as a member, notwithstanding pointed out by this

Court, "the views of the new faith hardly matter." This was the principle on which it was decided

by the Court in Chatturbhuj Vithaldas Jasni's case (supra) that Gangaram Thaware, whose nomination as a scheduled caste candidate was

rejected by the Returning Officer, continued to be a Mahar, which was specified as a scheduled caste, despite his conversion to the Mahanubhav faith."

11.

As laid down by the Supreme Court in the matter

of K.P. Manu, Chairman Scrutiny Committee for

Verification of Community Certificate, reported in AIR

2015 Supreme Court 1402, three things need to be

established by a person who claims to be a beneficiary

of a caste certificate - (i) There must be absolutely

clearcut proof that he belongs to the caste that has

been recognised by the Constitution (Scheduled Caste)

Order 1950; (ii) There has been reconversion to

original religion to which the parents and earlier

generations had belong; and (iii) there has to be a

evidence establishing acceptance by the community.

12. While considering somewhat similar facts/

situation like one in the present matter, the Supreme

Court, in the case of M. Chandra Vs. M. Thangamuthu,

wp7446-15.odt reported in (2010) 9 SCC 712, observed that in order to

claim benefits of reservation under the Constitution

(Scheduled Caste) Order, 1950, a person must establish

that the caste to which he belongs is notified in the

Presidential Order and he is not professing a religion

different from the Hindu, the Sikh or the Buddhist.

13. If findings of the Committee are carefully

perused, the finding of facts recorded by the Committee

that the petitioner is Christian by religion is without

any basis and the said finding is perverse, unjust,

inasmuch as, there is no documentary evidence on record

which would suggest that the petitioner professes

Christianity by way of conversion. The Committee has

not kept in view the law laid down by the Supreme

Court in the aforementioned authoritative pronouncement

and proceeded to invalidate the claim of the petitioner

only on the basis of Vigilance Cell's report.

14. In the instant matter, since there is no evidence

in respect of conversion, there arises no question of

reconversion to the original religion. There is

sufficient evidence placed on record to demonstrate

that petitioner belongs to Mahar caste and that the

people of the community accept petitioner as a member

wp7446-15.odt of Mahar caste.

15. The Scrutiny Committee has overlooked the basic

principles while declining to grant validation

certificate in favour of petitioner. The order passed

by the Scrutiny Committee invalidating the caste

certificate issued to petitioner is erroneous and

deserves to be quashed and set aside and the same is

accordingly quashed and set aside.

16.

The order passed by Respondent No.2 Scrutiny

Committee on 20.12.2014, invalidating caste certificate

issued in favour of the petitioner is quashed and set

aside. The Scrutiny Committee is directed to issue

validity certificate within a period of four weeks from

today. It would be open for the petitioner to apply for

admission to Respondents No.4 and 5 as a member

belonging to Scheduled Caste category. Respondents No.4

& 5 shall accept preference form of the petitioner

together with authenticated copy of the instant order

and shall not reject admission claim of the petitioner

only on the ground of her failure to submit validity

certificate. Petitioner shall produce true or attested

copy of the caste certificate together with the

preference form.

wp7446-15.odt

17. Rule made absolute accordingly. In the facts and

circumstances of the case, there shall be no order as

to costs.

18. Authenticated copy allowed. Parties to act upon

authenticated copy of this order.

(K. L. WADANE, J.) (R. M. BORDE, J. )

JPC