Francis Nivrutti Palande vs The State Of Maharashtra And ...
2016 Latest Caselaw 3208 Bom

                                                                              wp1493-16.odt
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD
                             WRIT PETITION NO. 1493 OF 2016




                                                                                 
            Francis s/o Nivrutti Palande                  ...         Petitioner 
            Age 44 years, Occu: Service,




                                                         
            R/o Loni (kh),Tq. Rahata, 
            Dist. Ahmednagar

            VERSUS




                                                        
    1.  The State of Maharashtra
        Through the Ministry of Social 
        Welfare Department,
        Mantralaya, Mumbai.




                                               
    2.      The Block Eduction Officer,
                                  
            Panchayat Samiti, Sangamner,
            District Ahmednagar.
                                 
    3.      The Sub Divisional Officer                    ...        Respondents.
            (Revenue), Shirdi, Tq. Rahat,
            District Ahmednagar
             
      


    4.      The Tahsildar,
            Rahata, Tq. Rahata, 
   



            District Ahmednagar

    5.      The Regional Caste Scrutiny 
            Committee-1





            Nashik Region, Nashik

    Advocate for Petitioner : Mr.Pathan Yunus Baasheer
    AGP for Respondents State: Mr. P. S. Patil





    Advocate for Respondent No.2 :  Mr. S. T. Shelke

                                        CORAM   :  R. M. BORDE & 
                                                    K. L. WADANE, JJ.
                                         DATE   :   24th June, 2016

    JUDGMENT (Per Wadane, J.):                        

1. Rule. Rule made returnable forthwith.

wp1493-16.odt

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.5-Caste

Scrutiny Committee on 8th September, 2015 invalidating

caste claim of the petitioner. According to the

petitioner, respondent No.5 Committee has considered

the aspects which are not material to determine the

caste claim of the petitioner and arrived at a wrong

conclusion. According to the petitioner, the documents

produced on record at Exhibit 'B' collectively are

sufficient to determine the caste claim of the

petitioner as belonging to Hindu Mahar caste.

4. The petitioner is serving as a teacher in Z.P.

School at village Manchi, Tq. Sanganmer Dist.

Ahmednagar. Respondent No.3-Sub Divisional Officer

(Revenue) Shirdi had issued caste certificate in favour

of the petitioner certifying that the petitioner is

belonging to Hindu Mahar, Scheduled Caste. The

documents presented by the petitioner demonstrate that

the petitioner is belonging to Mahar caste, however,

relying upon the report of the Vigilance Cell,

wp1493-16.odt respondent No.5 Committee has arrived at a wrong

conclusion. Hence the present petition.

5. We have perused the documents produced by the

petitioner in support of his caste claim before

respondent No.5- Committee. We have also perused the

report of the Vigilance Cell and the reasons recorded

by respondent No.5 Committee while rejecting the caste

validation claim of the petitioner. On perusal of the

same, it appears that respondent No.5 Committee has

relied upon the report of Vigilance Cell in which it is

reported that uncle of the petitioner died and

photograph of the tomb(kabar) where he was buried was

taken by the Vigilance Officer. Secondly, photograph

of Yeshu Christ was reported to be seen inside the

house of the petitioner so also on the upper portion of

the door. Respondent No.5 Committee, by relying upon

the circumstances appearing in the report of the

Vigilance Cell, has invalidated the caste claim of the

petitioner.

6. It appears that, respondent No.5 has taken into

consideration the irrelevant factors while determining

the caste claim of the petitioner. Merely because the

photographs of Yeshu Christ was seen inside the house

wp1493-16.odt and on upper portion of the door of house of the

petitioner is not sufficient to conclude that the

petitioner is belonging to Christian community. On the

contrary, during the vigilance enquiry, the vigilance

officer has recorded the statement of the Priest,

Incharge of the Church who stated that the petitioner

is not a member of the Church. Further more, there is

no evidence/material on record to conclude that the

petitioner has adopted Christian religion and he does

not belong to Hindu religion, Mahar caste.

7. 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 the family of the petitioner. The

petitioner has not relinquished Hindu religion and has

not adopted Christian religion at any point of time.

8. It is contended by the petitioner that he is

belonging to Hindu Mahar and in support of his claim,

the petitioner has relied upon the report of the Police

Inspector, Vigilance Cell. On perusal of Para 1 of the

wp1493-16.odt said report, it appears that school leaving

certificates of the petitioner and his real uncles

were collected, in which caste of the uncles is

recorded as Hindu Mahar. 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.

9. 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

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

wp1493-16.odt 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

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

wp1493-16.odt rejected by the Returning Officer, continued to be a Mahar, which was specified as a scheduled caste, despite his conversion to the

Mahanubhav faith."

10. 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.

11. While considering somewhat similar facts/

situation like one in the present matter, the Supreme

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

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

wp1493-16.odt different from the Hindu, the Sikh or the Buddhist.

12. 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.

13. 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 of Mahar caste.

14. 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

wp1493-16.odt certificate issued to petitioner is erroneous and

deserves to be quashed and set aside and the same is

accordingly quashed and set aside. Respondent No.5

Committee is directed to issue caste validation

certificate in favour of petitioner certifying that he

belongs to Mahar Scheduled Caste, in the prescribed

proforma, as expeditiously as possible, preferably

within a period of four weeks from today.

15. Rule made absolute accordingly. In the facts and

circumstances of the case, there shall be no order as

to costs.

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

JPC