Bombay High Court

Chhaburao David Kamble vs The State Of Maharashtra And ... on 6 June, 2016

Bench: R.M. Borde

                                                                        20wp2254-16.odt

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD
                             WRIT PETITION NO. 2254 OF 2016




                                                                              
            Chhaburao s/o David Kamble     ...                     Petitioner 
            Age 52 years, Occu: Service,




                                                      
            R/o Padali, Tq. Pathardi,
            District Ahmednagar
            At present r/o Manokamna 
            Society 1-8, Third Floor, 302,




                                                     
            Gautam Nagar, Panjarpola, 
            Chembur, Mumbai. 

            VERSUS




                                               
    1.  The State of Maharashtra
        Through its Secretary,    
        Tribal Development Department,
        Mantralaya, Mumbai.
                                 
    2.      The Divisional Caste 
            Certificate Scrutiny Committee 
            No.1, Nashik Division,
            Nashi.
      


    3.      The Assistant Engineer,                    ...        Respondents.
   



            Road and Traffic Department,
            Dhumra-Jantu Sayantra Office,
            Sudam Kalu Ahere Marg,
            Worli, Mumbai 400 030 





    Advocate for Petitioner : Mr. Murge Estling S.
    AGP for Respondents 1 and 2- State: Mr. V. M. Kangne
    Advocate for Respondent No.3 :  Mr. A. K. Tiwari





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

DATE : 6th June, 2016

ORAL JUDGMENT (Per Borde, J.):

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith and the

20wp2254-16.odt petition is heard for final disposal by the consent of

learned counsel for the respective parties.

3. The petitioner claims to be belonging to 'Mahar'

caste, which is included in the Scheduled Caste

category. Since the petitioner is employed as labour in

the Government Department, the caste certificate issued

to him has been referred to the Scrutiny Committee for

verification. The Scrutiny Committee, after following

the procedure prescribed in law, verified the caste

certificate and declared it as invalid vide its

judgment and order dated 17.12.2015.

4. The petitioner places reliance on the school

record of himself as well as birth and death register

of the year 1942, wherein the entry in respect of death

of his grandfather is recorded. The birth and death

grandfather as 'Mahar' Scheduled Caste. There is no

adverse entry in respect of caste of the petitioner in

any documentary record. It is also not a matter of

dispute that the caste certificate issued in favour of

the brother of the petitioner by name Anna David Kamble

has been validated by the Scrutiny Committee and the

validity certificate in that regard has been issued on

20wp2254-16.odt 01.02.2012. The Scrutiny Committee has turned down the

caste validation claim of the petitioner mainly on the

ground that vigilance cell has reported that the

petitioner appears to be observing Christan faith and

that final rites of his mother and grandfather were

performed in accordance with Christan faith.

5. The petitioner himself claims that he belongs to

Mahar caste and that there is no evidence in respect of

conversion of the petitioner and adoption of

Christianism and there is also no evidence to come to

conclusion that old order i.e. 'Mahar' community has

ostracized the petitioner as its member or that

outcasted or ex-communicated him.

6. In this regard, reliance can be placed on the

judgment in the matter of Chaturbhuj Vithaldas Jasani

Vs. Moreshwar Parashram and others, reported in AIR

1954 SC 236. In pararagraphs 48 and 49 of the judgment,

the Supreme Court has observed as follows:

"(48) Conversion brings many complexities in its train, for it imports a complex composite composed of many ingredients. Religious, beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of

20wp2254-16.odt family and social ties and the casting off or retention of old customs and observances.

The exact proportions of the mixture vary from person to person. At one extreme

there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the

conversion only nominal. There is no clearcut dividing line and it is not a matter which can be viewed from only one angle.

(49) 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.

The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters which concern the political rights of the old body when neither the old body nor the convert is seeking either legal or political favours from

20wp2254-16.odt the new as opposed to purely spiritual advantage.

On the other hand, if the convert has shown by his conduct and dealings that his

break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no

reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and

political advantages which are special to the old order."

7. There is absolutely no material available to

conclude that either the petitioner or his forefathers

have relinquished the Hindu faith and have adopted

Christianism. There is also no evidence to suggest that

the petitioner or his family have been outcast or ex-

communicated and that they have snapped ties with

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

all practical purposes the family belongs to Hindu

Religion. Apart from this, 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 casts

from amongst Hindus.

8. Apart from this, there is no reason for the

20wp2254-16.odt scrutiny committee to disbelieve the validation

certificate issued in favour of the brother of the

petitioner. On the contrary the Scrutiny committee

ought to have issued validity certificate in favour of

the petitioner on the strength of the documentary

evidence in the form of validity certificate issued to

his brother. In this context, reference can be made to

the judgment in the matter of Apoorva d/o Vinay Nichale

Vs. Divisional Caste Certificate Scrutiny Committee

No.1 & others reported in 2010(6) Mh.L.J. 401, wherein

the Division Bench of this Court has observed as

follows:

"9. In the present case, we find that the committee has disbelieved the petitioner's

case that she belongs to Kanjar Bhat after calling the school leaving certificate of

petitioner's father and noticing that the original caste written on it was 'Thakur' and that was subsequently changed to Kanjar Bhat.

The committee observed that the caste has been

changed without complying with the procedure prescribed by Section 48(e) and 132(3) of Mumbai Primary Education Act. In fact, the caste has been changed on the basis of the affidavit. From the findings of the committee it appears that the committee has observed that the change of caste has been done

20wp2254-16.odt illegally. Obviously, the committee which decided the caste claim of the petitioner's sister did not hold the same view, otherwise

it would have refused to grant validity. In the circumstances, we are of the view that the

committee which has expressed a doubt about the validity of caste claim of the petitioner and has described it as a mistake in its

order, ought not to have arrived at a different conclusion. The matters pertaining to validity of caste have a great impact on

the candidate as well as on the future

generations in many matters varying from marriage to education and enjoyment, and

therefore where a committee has given a finding about the validity of the caste of a candidate another committee ought not to

refuse the same status to a blood relative who

applies. A merely different view on the same facts would not entitle the committee dealing with the subsequent caste claim to reject it.

There is, however, no doubt as observed by us earlier that if a committee is of the view that the earlier certificate is obtained by fraud it would not be bound to follow the

earlier caste validity certificate and is entitled to refuse the caste claim and also in addition initiate proceedings for cancellation of the earlier order. In this view of the matter, we are of the view that the petition must succeed. Rule is made absolute in above terms. The Caste Scrutiny Committee is

20wp2254-16.odt directed to furnish the caste validity certificate to the petitioner."

9. In view of the decision in the matter of Apoorva d/o

Vinay Nichale (supra) as well as for the reasons

recorded herein above, the writ petition deserves to be

allowed and the same is accordingly allowed.

10. The order passed by the Scrutiny Committee

invalidating the caste certificate issued to the

petitioner is hereby quashed and set aside. The

scrutiny committee is directed to issue validity

certificate to the effect that the petitioner belongs

to 'Mahar' Schedule Caste, as early as possible and

preferably within a period of one month from today.