Vijay Yosef Hira Dive vs The State Of Maharashtra And ...
2016 Latest Caselaw 2738 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD
                             WRIT PETITION NO. 1403 OF 2016




                                                                              
            Vijay s/o Yosef/Hira Dive      ...                     Petitioner 




                                                      
            Age 42 years, Occu: Service,
            R/o Wander, Post: Kangar
            Taluka Rahuri Dist. Ahmednagar




                                                     
            VERSUS

    1.  The State of Maharashtra
        Through  Government Pleader
        High Court, Bench at 




                                               
        Aurangabad.

    2.
                                  
            The Zilla Parishad, Ahmednagar
            District Ahmednagar, Through 
            its Chief Executive Officer
                                 
    3.      The Caste Scrutiny Committee               ...        Respondents.
            No.1,
            Nashik Division, Nashik. 
      
   



    Advocate for Petitioner : Mr. Dattatraya R.Jaybhar
    AGP for Respondents 1 & 3 State: Mr. P. S. Patil

                                        CORAM   :  R. M. BORDE & 





                                                    K. L. WADANE, JJ.

DATE : 10th June, 2016

ORAL JUDGMENT (Per Borde, J.):

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith and the

petition is heard for final disposal by the consent of

learned counsel for the respective parties.

939wp1403-16.odt

3. The petitioner is objecting to the order passed

by the scrutiny committee directing invalidation of the

caste certificated issued in his favour. The petitioner

claims to be belonging to Mahar caste which is included

in Scheduled Caste category. Since the petitioner

secured employment as Primary Teacher as against the

seat earmarked for S.C. category, the caste certificate

issued to him has been referred to the Scrutiny

Committee for validation.

4. In order to substantiate his claim the

petitioner has placed on record his school record,

wherein, entry in respect of his caste is recorded as

Mahar, Scheduled Caste. The entry in respect of Mahar

caste has been recorded in the school record of his

cousin brothers. Grandfather of the petitioner has been

referred as Rangu Aba Mahar in the revenue record,

prepared in 1946. It has not been reported that

there is any doubt as regards authenticity or

correctness of the documents. The petitioner has

performed marriage with a girl belonging to Mahar

community and the marriage is performed as per the

Hindu rites.

939wp1403-16.odt

5. The Scrutiny Committee has directed invalidation

of the claim mainly for the reason that the name of

father of the petitioner is Yosef and the last rites

of his father and mother were performed in accordance

with Christan religious practice. The Scrutiny

Committee has drawn an inference that the father of the

petitioner has embraced Christian religion. The finding

recorded by the scrutiny committee prima facie appears

to be erroneous for the reason that there is absolutely

no evidence to support the conclusion that the father

of the petitioner was converted to Christianity. There

is no evidence in respect of performance of ceremonies

or the rituals of the conversion of the father of the

petitioner to Christian faith. There is also no

evidence either documentary or circumstantial to

arrive at the conclusion that father of the petitioner

has embraced Christian religion. Merely because

witnesses have stated that father and mother of the

petitioner were buried after their demise in

accordance with Christian religious practice, that does

not lead to an inference that there is actual

conversion of the father of the petitioner to

Christianity. Apart from this, the petitioner has

939wp1403-16.odt produced sufficient evidence to record conclusion that

he continues to profess Hindu religion and is adopting

Hindu religious practice. Since the petitioner has

married with a girl belonging to Mahar caste, it must

be concluded that the petitioner has been accepted by

the community as a person belonging to Hindu

religion/Mahar caste.

6. As has been held by the Apex Court in the matter

of matter of Chaturbhuj Vithaldas Jasani Vs. Moreshwar

Parashram and others, reported in AIR 1954 SC 236.

there are three factors which have to be considered:

(i) the reactions of the old body; (ii) the intentions

of the individual himself; and (iii) 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, views of the new

faith hardly matter.

7. In the instant case, the old body i.e. Hindu has

939wp1403-16.odt adopted the petitioner in its own fold and there is

nothing to infer that he has been outcaste or has been

excommunicated. The petitioner himself has expressly

and by his conduct shown desire and intention to retain

his old social ties with Hinduism. He claims himself to

be belonging to Hindu religion, Mahar caste. Mahar

community has accepted him as member of the old

order/caste. In these circumstances, as has been laid

down by the Supreme Court in the judgment referred

above, the alleged conversion of father the petitioner

to Christianity is merely nominal and for all practical

purposes, the petitioner retained Hindu faith. It also

must be considered that disadvantages which are

peculiar to Scheduled Caste, which is sadly a feature

of Hindu Religion, continue and the petitioner faces

such disadvantages and difficulties faced by the lower

castes from amongst Hindus.

8. The Supreme Court, in the case of S. Anbalagan

Vs. B. Devrajan, reported in 1984 2 SCC 112, held that

ordinarily a person who had earlier embraced another

religion regains his caste, unless the community does

not accept him. For reconversion to Hinduism, no

particular ceremony or rites are required to be

939wp1403-16.odt performed, unless the practice of that particular caste

makes it necessary. If the convert becomes Hindu, he

will revert to his original order. This appears to be

particularly so in case of members of Scheduled Caste,

who embrace other religions in their quest for

liberation, but returned to old order on finding that

their disabilities have clung them with great tenacity.

9. In the matter of K. P. Manu, Chairmanm Scrutiny

committee for Verification of Community Certificate,

reported in AIR 2015 SUPREME COURT 1402, the Supreme

Court, in paragraph 34 of the judgment, has observed

the three things that need to be established by a

person who claims to be a beneficiary of a caste

certificate, that-(i) There must be absolutely

clearcut proof that he belongs to the caste that has

been recognized 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. If

a person who is born to Christian parents who had

converted to Christianity from the Scheduled Caste can

avail the benefit of the caste certificate after his

939wp1403-16.odt embracing Hinduism subject to other qualifications,

there cannot be any soundness of logic that he cannot

avail the similar benefit because his grandparents

were converted and he was born to the parents who were

Christians.

10. In the matter at hand, there is no evidence

that the parents of the petitioner have embraced

Christian religion. Even if assuming that there is

conversion, it is nominal and not real. Even otherwise,

the petitioner has retained old order, has embraced

Hindu faith and there is an evidence to demonstrate

that he has been accepted by the community as member of

Mahar caste.

11. The scrutiny committee has overlooked the basic

principle while declining to grant validation

certificate in favour of the petitioner. The order of

the Scrutiny Committee invalidating the caste

certificate issued to the petitioner is erroneous and

deserves to be quashed and set aside and the same is

accordingly quashed and set aside.

12. The Scrutiny Committee is directed to issue

caste validity certificate to the the petitioner to

939wp1403-16.odt the effect that the petitioner belongs to 'Mahar'

Schedule Caste in prescribed prescribed proforma as

early as possible and preferably within a period of

four weeks from today.

13. Rule is made absolute accordingly.

14. There shall be no order as to costs.

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

    JPC