Bombay High Court
Bhanudas Hona Gajbhiv vs The State Of Maharashtra And ... on 2 August, 2017
Bench: S.C. Dharmadhikari
1 WP - 4945-2013-JUDGMENT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4945 OF 2013
Bhanudas S/o Hona Gajbhiv,
Age : 65 years, Occu. Business,
R/o : Shastrinagar, Shevgaon,
Tq. : Shevgaon, Dist. : Ahmednagar .. Petitioner
VS.
1] The State of Maharashtra,
Through its Secretary,
General Administration Department,
Mantralaya, Mumbai - 32
2] The Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Class
and Special Backward Class
Divisional Certificate Scrutiny Committee
No.1, Nasik Division, Nasik
3] The Tahsildar,
Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar
4] Shantaram S/o Sakharam Jondhale,
Age : 75 years, Occu.: Pensioner,
R/o : Mapari Galli, Newasa,
Tq. : Newasa, Dist. : Ahmednagar .. Respondents
----
Mr. S.R. Barlinge, Advocate with Mr. P.V. Suryawanshi, Advocate for the
petitioner
Mr. D.R. Kale, AGP for the respondent/State
Mr. A.B. Kale, Advocate for respondent no.4
----
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CORAM : S.C. DHARMADHIKARI &
MANGESH S. PATIL, JJ.
RESERVED ON : 23-06-2017
PRONOUNCED ON : 02-08-2017
JUDGMENT :
1. Rule. Respondents waive service. By consent, Rule is
made returnable forthwith.
2. By this Writ Petition under Article 226 of the Constitution
of India, the petitioner challenges the order passed by the Scheduled
Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Class and Special Backward Class Divisional
Certificate Scrutiny Committee no.1, Nasik Division, Nasik.
3. This is the Committee functional under the 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
Act, 2000 (for short "Maharashtra Act No. XXIII of 2001").
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4. The first respondent is the State of Maharashtra. The
second respondent is the Committee. The third respondent is the
Tahsildar, Shevgaon, Tq. Shevgaon, District - Ahmednagar and
respondent no.4 is the complainant.
5. He had made a complaint against the petitioner and which
led to the impugned order.
6. The petitioner claims to be belonging to 'Hindu Mahar
Scheduled Caste'. He received a certificate to that effect from the
Executive Magistrate, Shevgaon. That was issued on 29/02/1988.
A copy of this caste certificate is annexed to the Petition at Annexure
'A'.
7. Thereafter, the authority to issue the caste certificate, was
conferred on the Sub-Divisional Officer. The petitioner, therefore,
applied for issuance of a caste certificate to this competent authority,
namely, Sub-Divisional Officer, Ahmednagar and he issued a caste
certificate on 10/8/2005, copy of which is at Annexure 'B'.
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8. A certificate of validity was issued by the second
respondent - Committee in the year 2007, validating the claim of the
petitioner. A copy of this validity certificate is annexed to the Petition
as Annexure 'C'.
9. It is the grievance of the petitioner that respondent no.4
had a personal grudge against him and both of them are involved in
litigation. He instituted Writ Petition no. 3077 of 2012 challenging the
certificate of validity issued in favour of the petitioner. It was alleged
that the certificate was issued without a reasoned order. This Petition
was disposed of by this Court on 24/09/2012. The second respondent
- Committee was directed to hear both sides and pass a reasoned
order afresh. A copy of this order of this Court in that Writ Petition is
marked as Annexure 'D'.
10. The second respondent - Committee thereafter forwarded
the claim papers to the Vigilance Cell. That Cell was directed to hold
an Inquiry and submit the report. This Cell submitted its report on
29/10/2013. This Vigilance Cell report after being received by the
Committee, it followed the settled procedure of serving a copy thereof
on the petitioner and calling upon him to submit his reply in details to
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the contents of this report. A copy of the Vigilance Cell report is
marked as Annexure 'E' and the copy of the petitioner's reply to the
contents thereof/show cause notice, is marked as Annexure 'F'.
11. The petitioner relied upon several documents including a
'Hadola Vatan', issued in favour of his grand-father Mohana Balu
Mahar. This is dated 31/03/1908. The petitioner also submitted the
documents in respect of his uncle Eknath Mohana, whose caste was
recorded in village register no. 14 as 'Mahar'. This document is dated
06/02/1917. Then the petitioner also submitted documents in respect
of daughter of Mohana, wherein the entry in the caste column was
recorded as 'Mahar'. The petitioner also submitted the documents,
namely, a certificate in respect of his sister Indura Hona Mohana
Mahar, wherein also the entry in the caste column is 'Mahar'. Several
such documents and copies of which are compiled at Annexure 'G'
collectively came to be forwarded. Respondent no.4 also gave a
written reply and he relied on some documents to indicate that some
of the relatives of the petitioner had embraced Christianity and
extracts in respect of those relatives with entries in the caste column
recorded as 'Christian'. Annexure 'H' is a copy of this reply.
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12. The petitioner alleges that the fourth respondent had
threatened the Committee that he would undergo fast unto death, if
the claim of the petitioner is not considered expeditiously. The
petitioner alleges that influenced by such threats, the Committee
passed the impugned order dated 31/05/2013, copy of which is
marked as Annexure 'J'. The petitioner also relies upon Annexure 'I',
which is is a copy of notice issued by fourth respondent, threatening
that he would undertake fast unto death.
13. It is this order of the Committee dated 31/05/2013, which
is challenged in this Writ Petition.
14. Mr. Barlinge, learned counsel appearing for the petitioner
would submit that in the earlier round, when a certificate of validity
was issued to the petitioner, all the documents were considered. A
certificate of validity was granted earlier. It is only because of a
mischievous and malafide complaint by the respondent no.4, that the
Committee proceeded to invalidate the petitioner's claim. The
impugned order is vitiated by several errors apparent on the face of
record. Mr. Barlinge would submit that the impugned order is wholly
perverse. It is contrary to the mandate of the Maharashtra Act no.
XXIII of 2001.
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15. Mr. Barlinge would submit that if the Maharashtra Act no.
XXIII of 2001 provided for the regulation of the issuance and
verification of the caste certificates to the persons belonging to the
above classes and categories and for matters connected therewith or
incidental thereto, then, its ambit cannot be widened or enlarged to
include an enquiry into a caste validity certificate issued earlier and
when that caste validity certificate was not obtained by fraud or
misrepresentation. Mr. Barglinge would invite our attention to the
definitions in the Maharashtra Act no. XXIII of 2001, in Section 2, to
submit that the Scrutiny Committee means a Committee or
Committees constituted under Section 6(1) for verification of the caste
certificate and to perform the functions of Scrutiny Committee.
Mr. Barlinge would submit that an application can be made for caste
certificate in order to claim the benefit of any reservation provided to
such castes, tribes or classes, either in any public employment or for
admission into any educational institutions or any other benefit under
any such provisions made under Article 15(4) of the Constitution of
India or for the purpose of contesting for elective offices of any local
authority or in the co-operative societies or for purchase or transfer of
land from a tribal land holder or for any other purposes specified by
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the Government. Mr. Barlinge would submit that if the caste
certificate is obtained for any such purpose, and that is relied upon,
then, Section 6 requires that such certificate has to be forwarded to the
concerned Scrutiny Committee for the verification of such caste
certificate and issue of a validity certificate.
16. Mr. Barlinge would submit that the petitioner was desirous
of contesting the election against a reserved seat in the local body
elections. Therefore, he made an application for issuance of the
validity certificate. That application was made on 03/03/2006. It is
upon such an application that the validity certificate was issued. That
certificate was issued after the Maharashtra Act no. XXIII of 2001 was
brought into force. The Scrutiny Committee referred to various
relevant documents and, thereafter, issued the validity certificate.
17. Respondent no.4 challenged the validity certificate but in
the order passed by this Court, it is clarified that the bonafides of the
complaint made by the fourth respondent had not been gone into or
investigated. Thus, this was not a case where respondent no.4 alleged
that a false certificate was obtained and, therefore, the Committee
should record an opinion whether it was obtained fraudulently or not.
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This was a simplicitor complaint, of which note was taken by this
Court, namely, that in granting the certificate of validity to the
petitioner earlier, this Committee did not pass a reasoned order. Thus,
principles of natural justice were violated in issuing the certificate of
validity earlier. Therefore, the Committee was directed to pass a fresh
order by the Court. This is a case where the Committee did not follow
the prescribed procedure and failed to assign reasons earlier. The
petitioner before this Court was never at fault. For, he cannot be
blamed if the Committee does not perform its statutory duty and
function. The respondent no.4 using this as a tool to harass the
petitioner, derived advantage and has virtually forced the Committee
to pass the impugned order.
18. Since this was not a case of fraud or a false claim, the
Committee could not have re-visited its order. Assuming for a
moment, that it was set aside, therefore, the Committee was obliged to
abide by this Court's order, still, in the present case, the Committee has
failed to record the requisite satisfaction that the certificate of validity
issued earlier was obtained falsely.
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19. Mr. Barlinge submits that every document produced by the
petitioner before the Committee in the fresh exercise, has been
discarded for untenable reasons. It is observed by the Committee that
these documents were produced during the course of the proceedings
before the Committee and not during Vigilance Cell enquiry. Mr.
Barlinge has invited our attention to page 165 of the paperbook to
submit that document at serial no. 7, 8, 10, 11, 13 have only been
considered. There is a sole finding recorded by the Committee at page
165 of the Petition against the petitioner. However, it is evident from
the documents at page 42 to 47 that the petitioner's family follows
Hindu religion. They cannot be termed as Christians. There has to be
concrete proof before the Committee for it to record that the petitioner
has embraced Christianity. There is voluminous documentary evidence
produced in the form of a letter from the Church, which records that
the petitioner has not undertaken the ceremonies necessary for
induction into Christian religion. Members of the Christian
community have not recognized nor they have accepted him and there
is no independent proof that he has embraced Christian religion.
Then, the Committee has erred in invalidating the claim of the
petitioner. Its order is therefore vitiated by non-application of mind.
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The basic principles and fundamental tenets have been ignored by the
Committee. Therefore, its order be quashed and set aside.
20. The impugned order is supported by respondent no.4.
Mr. Kale, learned counsel appearing for respondent no.4 submits that
the Committee was fully empowered to consider the issue again.
Apart from the binding order and direction of this Court, additionally,
it is apparent from the record that the wife of respondent no.4 who
was a Zilla Parishad employee, purchased a land for construction of a
house in Shevgaon town. The petitioner encroached on the said land.
Respondent no.4 filed Regular Civil Suit no. 70 of 1991. That suit was
decreed in favour of respondent no.4. However, the petitioner filed
the compliant, alleging atrocity under the Scheduled Castes,
Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the
respondent no.4. Respondent no.4 was forced to undergo a trial. In
the Criminal trial after the evidence was recorded, the competent
Criminal Court arrived at a conclusion that there is no evidence
adduced by the petitioner which would enable the Court to convict
respondent no.4 for the offences alleged and particularly, Atrocity.
Hence, he was acquitted. In the meanwhile, even the Regular Civil
Appeal, challenging the judgment and decree of the trial Court in the
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Civil Suit, was decided on 07/12/2005 and it was dismissed. The
petitioner filed Second Appeal, which came to be dismissed on
16/01/2006. The Special Leave Petition was also dismissed on
12/03/2007. Execution proceedings are pending. It is the petitioner,
who used caste certificate and the validity certificate as a tool or
weapon to harass the fourth respondent. Respondent no.4 has still not
obtained the fruits of the judgment and decree in the Civil Suit and the
Execution Proceedings are pending. Further, Mr. Kale took us through
the judgment and order of the trial Court in the Criminal Case/Atrocity
offence proceedings and, particularly, the version appearing at pages
226 to 228, to submit that a benefit of doubt was given to the
respondent no.4 and he was acquitted but while granting such benefit,
the trial Court observed that the forefathers of the petitioner has
converted to Christianity. It is in these circumstances, that the
petitioner perpetrated a fraud and this is a fraud on the public. This
fraud was not probed earlier and the Scrutiny Committee mechanically
issued the certificate of validity. It was that obligation which is to be
discharged under the Statute. But failure to so discharge it, led to a
complaint by the respondent no.4. It is in these circumstances, and
when the petitioner on the strength of this caste certificate, decided to
contest the election, obtain dealership of an Oil Company, that the
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fraud came to light. This fraud having not been probed by the
Committee, that led to its earlier order being set aside. Mr. Kale,
therefore, invites our attention to the documents in that regard and
particularly, pages 149 to 153. He would submit that all the
documents produced before the Committee demonstrate that the
petitioner's religion is Christian. There is no pleading in the Petition
that all the documents produced now were earlier before the
Committee. Since no reasons are assigned earlier, the Court cannot
indulge in a guesswork, thus, the claim of the petitioner was never
genuine but doubtful. The Scrutiny Committee was not acquainted
with the ground realities earlier but this time, with the assistance of
the Vigilance Cell's report, it arrived at the correct conclusion. There is
no perversity nor is the impugned order contrary to law. Hence, it
should not be set aside. Mr. Kale heavily relies upon the affidavit-in-
reply of respondent no.4 and the documents annexed thereto.
21. For properly appreciating the rival contentions, the
Maharashtra Act no. XXIII of 2001 would have to be perused. As is
already referred above, there are certain vital definitions in Section 2.
Definitions of the term "Competent Authority" provided in Section
2(b), "Nomadic Tribes" "Other Backward Classes", "Prescribed",
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"Scheduled Castes" and "Scheduled Tribes" are relevant. Section 3
provides for an application for caste certificate and by Section 4, a
caste certificate has to be issued by the Competent Authority after
satisfying itself about the genuineness of the claim and following the
procedure as prescribed, meaning prescribed by the Rules. The caste
certificate has to be issued within such time limit and in such form as
may be prescribed or it may be rejected for reasons to be recorded in
writing.
22. That order of rejection of the Competent Authority can be
challenged in Appeal as provided in Section 5. Section 6 reads as
under:-
"6. (1) The Government shall constitute by notification
in the Official Gazette, one or more Scrutiny
Committee(s) for verification of Caste Certificates issued
by the Competent Authorities under sub-section (1) of
section 4 specifying in the said notification the functions
and the area of jurisdiction of each of such Scrutiny
Committee or Committees."
23. Perusal of the same would reveal, as to how the
Government has to constitute by notification in the Official Gazette,
one or more Scrutiny Committee(s) for verification of Caste
Certificates issued by the Competent Authorities under Sub-Section (1)
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of Section 4. It is only after obtaining Caste Certificate from the
Competent Authority, that any person desirous of availing of the
benefits or concessions provided to the Scheduled Castes, Scheduled
Tribes etc. for the purpose mentioned in Section 3, may make an
application, well in time, in such form and in such manner, as may be
prescribed to the concerned Scrutiny Committee for the verification of
such Caste Certificate and issue of a validity certificate. The Scrutiny
Committee shall follow such procedure for verification of the Caste
Certificate and adhere to the time limit for verification and grant of
validity certificate, as prescribed.
24. Section 7 deals with confiscation and cancellation of a
false certificate. Any certificate of validity can be probed by the
Scrutiny Committee suo-motu or otherwise and on an enquiry into the
correctness of the certificate and if it is of the opinion that the
certificate was obtained fraudulently, cancel and confiscate the
certificate but before that is done, it has to follow a prescribed
procedure as also give person concerned, an opportunity of being
heard. The order of the Scrutiny Committee is given finality and
cannot be challenged before any Authority or Court.
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25. By Section 8, there is a burden on the person applying for
issuance of a caste certificate of proving that he belongs to such caste,
tribe or class. Certain powers of Civil Court are conferred in the
Scrutiny Committee and in the Authorities by the Act by Section 9.
Similarly, by Section 10(1), it is clarified that benefits secured on the
basis of a false certificate to stand withdrawn. The Act has, therefore,
provided for serious consequences and has also included provisions by
which the obtaining a false certificate by furnishing false information
or filing false statement or documents or by any other fraudulent
means or securing benefits by producing a false caste certificate has
been made an offence and punishable. In addition thereto, issuance of
a false certificate is also an offence, for which penalty is provided by
Section 11, 12, 13 and 14. By Section 14, even abetment is an
offence. Section 15 takes away the jurisdiction of Civil Court and
Section 16 protects the acts done in good faith. By Section 17, it is
clarified that provisions of this Act shall be in addition to the
provisions of any other law for the time being in force. There is a
power to make Rules conferred by Section 18.
26. Such being the rigor of the Maharashtra Act no. XXIII of
2001, and its provisions, the Scrutiny Committee is obliged to verify
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the claim strictly in accordance with the Act but even when the
complaint is made that the certificate has been secured in a fraudulent
manner, or a false claim is made, in the sense, false information is
furnished or false statement or document is filed or by any other
fraudulent means, the certificate is procured, there is an equal
mandate to record satisfaction on the above aspects clearly. There is
no question of assuming a fraud or accepting the one sided version of
fraud. There has to be proof of fraud. In the present case, we find
that the Scrutiny Committee had before it, the order passed by this
Court and which obliges it to once again consider the claim. The
earlier certificate of validity issued to the petitioner is at page 19 of the
paperbook. The caste certificate is at page 17 of the paperbook. The
order of the Scrutiny Committee is at page 147 of the paperbook. The
Scrutiny Committee proceeded on the basis that the order of this Court
binds it and it must verify the claim. That is how it issued notice to
the petitioner and the petitioner appeared before the Committee. He
submitted his version in writing. After a brief hearing on 30/10/2012,
the Committee referred the matter to the Vigilance Cell. The Vigilance
Cell conducted an enquiry by visiting the school and the home. It
submitted its report on 29/01/2013. Copy of the Vigilance Cell report
was forwarded to the petitioner and, thereafter, the petitioner was
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heard. The petitioner pointed out the defects and deficiencies in the
Vigilance Cell report. On 22/02/2013, the matter was once again
referred to the Vigilance Cell in the sense, re-enquiry was ordered.
Thereafter, another report was forwarded by the Vigilance Cell to the
Committee. Subsequently, the petitioner demanded copies of all the
relevant documents and his request was granted. Thereafter, the
petitioner appeared and also submitted written arguments.
27. The Committee pointed out that the petitioner had for the
purpose of contesting elections, submitted a proposal and for issuance
of the validity certificate. Together with that proposal, he submitted
his school leaving certificate as also certified true copy of his father's
school leaving certificate. He also submitted copy of the death
certificate of his cousin and an affidavit to support the family tree.
The Committee itself records that on the basis of these documents, it
issued the certificate of validity earlier. However, the Committee now
says that the whole claim is illegal, false and baseless.
28. This is a drastic conclusion recorded by the Committee. In
doing so, before arriving at the above conclusion, the Committee took
on record certain documents forwarded by respondent no.4. Those
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are the birth / death extract of petitioner's grand-father, father, and the
birth extracts of his sister and brother. He alleged that the petitioner's
blood relatives are Christians by birth. Respondent no.4 alleged that
despite this position, the Tahsildar, Shevgaon granted the caste
certificate. It is stated that the documents filed before the Tahsildar
(Affidavit) and the family tree shown therein, is false. The petitioner
had suppressed from the Tahsildar that his blood relations are
Christians. It is then stated that there was a Sessions Case no. 127 of
1993 filed by the petitioner in the Sessions Court at Ahmednagar.
Therefore, the original birth / death registers were produced and from
that, it is evident that the petitioner does not belong to Hindu religion.
29. This record, according to respondent no.4 came to light
only when the petitioner filed Atrocity complaint in the Shevgaon
Police Station, which was later on converted into Criminal Case no.
280 of 1991. In that case, the petitioner relied upon the birth and
death extracts of his sister, brother, father and grand-father. From all
this, it is clear that the Sessions Court upon perusal of the same, was
satisfied that being a Christian, the petitioner could not have filed an
Atrocity complaint. Respondent no.4 relied upon the finding recorded
by the Sessions Court on point no.4.
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30. Then, the respondent no.4 relied upon the finding in the
Vigilance Cell's report inter-alia to the effect that one Hona Mohana
Gajbhiv was not cremated but burried. He is the father of the
petitioner. The place where he was burried, was shown by the cousin
Bhagwan Kondiram Gajbhiv and the Police Patil of the village. All
these persons including the team of the Vigilance Cell visited the spot.
This is Christian's cemetery and there are tombs. One of them was of
the petitioner's father. It is in these circumstances, that it was alleged
that all this information was suppressed. The elder brother - Sonaji
and Kondiram and cousin Bhagwan as also the petitioner himself in
their statement recorded on 07/01/2013 stated that the cremation
was by lighting fire pit but that is not borne out from the above.
31. The above allegations made by respondent no.4 were
denied by the petitioner. The petitioner says in his version that he
never converted to Christian religion. He stated that his grand-father
Mohana Bala was Hindu Mahar. That is why the Government allotted
to him a piece of land bearing gat no. 32 in village Mouje Erandgaon,
this is Hadaki Hadola land. The revenue entries in relation to the
same were produced on 08/10/2012 and 18/02/2013 before the
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Scrutiny Committee. Hadaki Hadola land is allotted only to those
belonging to backward and downtrodden classes (Shudras) i.e. Mahar
caste alone. It is stated that there was a second wife of his father and
she gave birth to Sari, Kondiram Hona, Katha Hona. The petitioner
and these persons are not in touch with each other. They have no
relations. It is alleged that none of the documents produced by the
respondent no.4 nor the findings in the Vigilance Cell report should be
accepted. While it is true that the complaint of Atrocity was filed but
that does not have any bearing on the present case or the judgment
and order of acquittal therefrom. The Sessions Court has not recorded
a categorical finding that the petitioner belongs to the Christian
religion. Respondent no.4 was acquitted by giving him benefit of
doubt. In the circumstances, the Committee should not be influenced
by any finding in the judgment of the trial Court in the Atrocity case.
The petitioner belongs to Mahar Scheduled Caste. As far as freedom
of religion is concerned, that is not to be confused and equated with
the caste and tribe. The caste or tribe cannot be changed and there is
no way one can enter into another caste or tribe and exit from one
caste or tribe into another. Thus, religion can be changed but not the
caste. In the present case, there is absolutely no falsehood. The
petitioner is a Hindu. He has never misled any Committee. It is in
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these circumstances, that he also made very serious allegations against
the members of the Vigilance Cell and argued that if there was no
truth in the same, the Committee would not have ordered re-enquiry.
32. When such are the materials and the Committee had
before it as many as 30 documents, what we find is that it relied on
the documents from serial no. 7 to 13. These are the copies of school
leaving certificate of Kamal Honaji Gajbhiv who was born on
01/06/1950, entered the school on 14/10/1958. There is another
entry in Gaon Namuna No. 14 which shows that Tahsildar, Shevgaon
had entered in the religion column of Hona Mohana Gajbhiv, who gave
birth to Sari (sister of the petitioner) that Christian is her religion.
Similarly, the death certificate of Mohana Bala carries an entry
Christian/Christi. Mohana Bala is the grand-father of the petitioner.
Then, the petitioner's brother also has been certified as belonging to
the Christian religion in the death certificate dated 30/11/1939.
There are other two birth and death extracts pertaining to a son born
to Hona Mohana Gajbhiv but it is stated that this person is the brother
of the petitioner. Similarly, entry in the death certificate of Sari dated
17/08/1939.
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33. It is only in these documents, that there is a reference or
there is an entry as Christian in the religion column. As against this,
the same Tahsildar issued birth certificate to one Shanti dated
05/12/1930. This Shanti is the sister of the petitioner. Pertinently, in
the caste column, entry is Mahar. Similarly, Hona Mohana gave birth
to one daughter Emal on 26/03/1953 and in the caste column, the
entry is Mahar. One Eknath Mohana was born on 06/02/1917 and in
the birth extract, the entry in the caste column made by Tahsildar,
Shevgaon is Mahar. This Eknath Mohana is the cousin of the
petitioner. There is an extract from the Hadola Patrak and produced
by the petitioner wherein his name is written as Mahana Balu Mahar.
Thereafter, there are other documents referred including one school
leaving certificate which was signed by the Headmaster, Primary
School of Zilla Parishad, Erandgaon, Tq. Shevgaon, District -
Ahmednagar of one Sonyabapu Hona Gajbhiv. He is brother of the
petitioner and the entry in the caste column in this document is Mahar.
Sonyabapu was born on 01/05/1942 and he entered the school on
12/07/1949. Similarly, the sister of Hona Gajbhiv (Kamal) entered the
same school, was born on 01/06/1950. She entered the school on
14/10/1958, In the school leaving certificate pertaining to her as well
in the caste column, the entry is Mahar. One Bhagwan Kondiram
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Gajbhiv who is the cousin of the petitioner and in his case, the school
leaving certificate was produced, where the Headmaster, Janata
Vidyalaya, Ghotan, District - Ahmednagar entered Mahar as his caste
in the school leaving certificate.
34. It is in these circumstances, and when a very pertinent
document, namely, the school leaving certificate issued by the
Headmaster, Vidya Prasarak Samaj's Residential Highschool,
Ahmednagar, shows that the petitioner was born on 01/06/1948,
entered the school on 25/06/1964 and entry in the caste column is
Mahar. However, the Vigilance Cell visited the school and the Principal
disowned this certificate. Therefore, that was ignored.
35. The Committee then refers to all those certificates where
the entries in the caste column is Mahar. All these documents were
produced and during the course of proceedings before the Committee.
We do not see how, the Committee could have discarded them. The
Committee takes up only those documents which were produced
before it or which were referred in the Vigilance Cell report and in
which the entry in the caste column is Christi/Christian. However, it
refers to the document / birth extract of Sari, and who was born to
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Hona Mohana Gajbhiv. In regard to this document where the entry is
Christian in the caste column, the Tahsil Office, Shevgaon informed
that the Gaon Namuna No. 14 register is available and pages 26 and
38 are appearing therein but page 32 on which this entry is supposed
to be appearing, is missing. The Committee then refers to the
document at serial no. 10 in relation to petitioner's grand-father and
another document at serial no.11, in which the entry in the caste
column is Christian. However, there was another document issued and
produced at serial no. 12, which is also the extract of birth register and
in the birth column of the date 25/11/1939, it is stated that one Hona
Gajbhiv gave birth to a son and his caste is Christian, however, even
this page was missing from the register when the same was inspected
by the Vigilance Cell on 07/12/2012. In relation to document at serial
no. 14 as well, the entry in the caste column was verified by the
Vigilance Cell and Shanti, the daughter of Hona Mohana was stated to
be Mahar. Thus, all these documents which had carried or contained
the entry in the caste column as Mahar, were relevant and could have
been omitted from consideration only if the Committee found that
there was a contemporaneous record of the petitioner and his family
embracing Christianity. The documents which were produced at serial
no. 21, 24 and 25 were not taken into consideration only because the
26 WP - 4945-2013-JUDGMENT
contents thereof could not be perused by the Vigilance Cell or the
Vigilance Cell had no occasion to scrutinize the same. We do not see
how this approach can be justified in the facts and circumstances of
the present case.
36. The Committee had before it an allegation that the
petitioner has embraced Christianity and which fact was suppressed
from the Committee. That has a vital bearing on the case. The
Committee could have arrived at another conclusion and such
allegation being proved would not have issued the certificate of
validity. Had true and correct information about the petitioner's
religion being brought before it, it would not have then accepted the
petitioner's claim. The petitioner proclaimed that he was a Hindu but
the record produced by the respondent no.4 shows otherwise. This is
his allegation. As against it, from the record produced and relied upon
by respondent no.4, the petitioner relied on documents which carry
equal weightage. These documents are pertaining to his close relatives
like brother and sister on the paternal side. In their cases, the entry in
the caste column is Mahar. Therefore, it is not as if there is clinching
evidence in support of the claim or allegation of the respondent no.4.
Eventually, only some documents were produced to allege that the
27 WP - 4945-2013-JUDGMENT
petitioner has embraced Christian religion.
37. Firstly, the Committee has not recorded any finding or
opinion as to what bearing the religion can have on the claim. True it
is that it is the untouchability amongst Hindus and the differentiation
and distinction between human beings on caste basis, which led to
atrocities on all those, who do not belong to the upper caste. Caste
system was prevalent predominantly amongst Hindus and that is why
the Social Reformers and National Leaders like Mahatma Gandhi and
Dr. Babasaheb Ambedkar waged a battle to eradicate caste system and
were of the firm opinion that we should march towards a casteless
society. Article 17 of the Constitution of India was inserted so as to
abolish untouchability, which was prevailing in the upper castes
amongst Hindus, however, as far as Constitutional provisions go, it is
apparent that the Constitution of India contains Articles 341 dealing
with Scheduled Castes and under which the President of India, may
with respect to any State or Union, and, where it is a State, after
consultation with the Governor thereof, by public notification, specify
the castes, races or tribes or parts of or groups within castes, races or
tribes which shall for the purposes of this Constitution be deemed to
be Scheduled Castes in relation to that State or Union Territory, as the
28 WP - 4945-2013-JUDGMENT
case may be. Clause 2 of Article 341 provides for inclusion or
exclusion from the list of Scheduled Castes specified in the notification
issued under clause (1) any caste, race or tribe or part of group within
any caste, race or tribe, but such inclusion or exclusion has to be by
Parliament by law. Save as aforesaid a notification issued under the
said clause shall not be varied by any subsequent notification. Article
342 deals with Scheduled Tribes and contains a like provision.
38. We do not see, therefore, justification for the conclusion in
the instant case that because the petitioner is allegedly a Christian he
is not a Scheduled Caste, namely, Hindu Mahar. Such a conclusion
could have been recorded only after the Committee had concrete proof
before it that as the petitioner claimed to be Hindu Mahar, his religion
has a definite bearing. That is therefore relevant for the enquiry.
There is therefore, justification to hold that if the petitioner was not a
Hindu, then, he cannot be a Hindu Mahar. For a moment, we accept
that such findings or conclusion could be reached but when Article
366 was referred containing definitions, even there, the Constitution
clarifies that unless the context otherwise requires, the expressions
therein have the meaning assigned to them, and clause 24 and 25 of
Article 366 contains the same definitions, of Scheduled Castes and
29 WP - 4945-2013-JUDGMENT
Scheduled Tribes and referrable to Article 341 and 342. If the
petitioner claims to be belonging to Hindu Mahar Scheduled Caste, he
has suppressed from the Committee earlier, as alleged by the
respondent no.4 that he embraced Christianity. Being a Christian,
then, the whole foundation of his claim falls to the ground. Such a
conclusion can be reached only when there is solid proof of the
petitioner embracing Christianity.
39. In that regard, we do not find any material before the
Committee, save and except the entries in the case of some blood
relations of the petitioner. As held above, there are equal number of
documents in which the petitioner's blood relations have been certified
as belonging to Hindu Mahar caste. The petitioner specifically denied
the allegations of the respondent no.4 and asserted that the entries in
the caste column of his blood relations are Hindu Mahar and he has
not embraced Christian religion. Yet, the Committee relying upon
some observations of the Hon'ble Supreme Court in the case of
Madhuri Patil V. Additional Commissioner, Tribal Development and
others reported in AIR 1995 S.C. 94 and referring to only few
documents, namely, serial no. 7, 8, 10, 11 and 13, which documents
have been verified and scrutinized by the Vigilance Cell, came to the
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conclusion that the petitioner has embraced Christianity.
40. The Committee also heavily relied upon the observations
and findings in the Criminal Case.
41. In relation thereto, we have carefully perused that
judgment.
42. The Criminal Court was dealing with the complaint of
Atrocity which was made. It was a State prosecution. The allegations
inter-alia were that three accused Shantaram Sakharam Jondhale, Sau.
Kusumbai Shantaram Jondhale and Bhivsen Yeshwant Pathak -
accused have committed offences punishable under section 3(1)(x) of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short "Atrocities Act"). Pertinently, the name of
respondent no.4 before us is Shantaram Sakharam Jondhale. The
prosecution story has been referred and it is alleged that accused no.1
to 3 (accused no. 1 is Shantaram) abused the complainant by calling
him "Mahardya" and uttering the words reproduced at page no.223
paragraph no. 3 and 4 of the trial Court's judgment. The trial Court
referred to the version of both sides including the oral and
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documentary evidence and framed point no.4 as under:-
"4) Whether prosecution proved that accused
in furtherance of their common
intention intentionally insulted
complainant to humiliate him within
public view knowing that he is member
of scheduled caste and committed an
offence punishable under section 3(1)
(x) of S.C. & S.T. (Prevention of
Atrocities) Act, 1989 ?
.. No"
43. It would be convenient to reproduce the relevant
paragraphs from the trial Court's judgment, reading thus :-
"12. Before going to different points, it would be just
and necessary to first find out whether complainant
belongs to Mahar community. In this regard,
complainant examined himself and stated that he
belongs to Mahar community. Prosecution has also
examined P.W.5 Kishor Govindrao Deshmukh. He has
stated that present complainant moved an application
to Tahsil office for issuance of caste certificate on
29.2.1988. That on the basis of school leaving
certificate, caste certificate was issued by Tahsildar.
Accordingly, said caste certificate has been proved which
is at Exh. 44. Similarly this witness says that
application was also moved to the Prant for issuance of
caste certificate. Accordingly, Prant has also made
enquiries and had issued caste certificate which is at
Exh.45. Both these caste certificate at Exh. 44 and 45
show that Bhanudas s/o Hona Gajbhiv of village
Shevgaon belongs to Hindu Mahar which is recognized
as Scheduled Caste.
32 WP - 4945-2013-JUDGMENT
13. On the other hand, defence in order to show that
caste certificate was false and ancestors of present
complainant belong to Christian community, had
examined D.W.3 Kishore Govindrao Deshmukh at
Exh.60. This witness states that he was working in
Tahsil office and he has brought original registers of the
years 1936, 1937 and 1939. He has also filed
document on record at Exh.61 showing that Sari Hona
Gajbhiv died on 22.9.1936 and he belongs to Christian
community. Another document was filed at Exh.62
showing death certificate of Mohana Bala having
expired on 25.4.1937, and he belongs to Christian
community. Next document was filed at Exh.63
showing death certificate of Sona father Hona having
expired on 30.11.1939 and he belongs to Christian
community. Another document at Exh.64 was filed
showing death extract of Hona Mohana Gajbhiv having
expired on 25.11.1939. Another document at Exh.65
was filed showing that Sari Hona Gajbhiv expired on
18.8.1939 and he also belongs to Christian community.
14. My attention was drawn to the cross-examination
of complainant, wherein he has admitted that Mohana
Bala is his grand-father and that Hona is his father. He
admits that Kanta is daughter of his father. Kondiram
is his brother and Sundara is sister.
15. From the evidence led by the prosecution, it does
disclose that complainant has produced documents to
show that he belongs to Mahar community. But at the
same time, arguments advanced by counsel for accused
will have to be also taken into consideration that
ancestors of complainant were Christians and therefore,
provisions of Scheduled Caste & Scheduled Tribes
(Prevention of Atrocities) Act would not be attracted.
Here the complainant does admit that Hona is his
father. Mohana is his grand-father. Death Certificate at
Exh.64 does disclose that Hona Mohana Gajbhiv expired
on 25.11.1939 and he belongs to Christian community.
33 WP - 4945-2013-JUDGMENT
It is also not contended or argued that death certificate
which has been filed on record at Exh.64 does not
belong to father of complainant. All these documents
which have been proved are old record prior to
Independence. There is no reason to doubt it. Taking
into consideration that we have two different versions
coming, one version which goes to show that parents of
complainant belong to Christian community; while
other evidence shows that present complainant is shown
as belonging to Mahar community. Under these
circumstances, as two views are possible, one that is
favourable to the accused will have to be accepted.
Hence, it is doubtful whether complainant belongs
Mahar community or whether he belongs to Christian
community who has converted subsequently back to
Mahar community. Hence, I hold that it would not be
proper on my part to apply provisions of Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act,
1989. Hence, accused deserve to be given benefit of
doubt and hence entitled to be acquitted as regards
offence punishable under Section 3 (1)(x) of Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act,
1989."
44. A bare perusal of these paragraphs would indicate that one
of the argument that was considered, is that the evidence of the
prosecution discloses that the complainant had relied upon documents
to show that he belongs to Hindu Mahar caste. The accused argued on
the other hand that it would have to be considered whether the
ancestors of the complainant's were Christians, and, therefore, the
Atrocities Act would not be attracted. The only observation in
paragraph 15 is that the complainant admits that Hona is his father.
34 WP - 4945-2013-JUDGMENT
He admits that Mohana is his grand-father. The death certificate
discloses that Hona Mohana Gajbhiv expired on 25/11/1939 and he
belongs to Christian community. It was not argued nor was it proved
that the death certificate filed on record at Exhibit 64 is not that of the
father of the complainant - petitioner before us. It was held by the
trial Court that these documents are pre-independence or old and have
better evidentiary value. There is no reason to doubt them. Further,
the trial Court came to this conclusion that there are two different
versions before it. One is that the parents of the complainant belongs
to Christian community while other evidence shows that complainant
- petitioner before us belongs to Hindu Mahar community. Under
these circumstances, as two views are possible, one that is favourable
to the accused will have to be accepted. Hence, it is doubtful whether
complainant belongs to Mahar community or whether he belongs to
Christian community but has converted subsequently to Mahar
community. Now, this finding of the trial Court depicts lack of
knowledge of basic tenets. It is not that one can embrace a community
or caste and later-on exit to another community or caste.
It is clear that religion can be changed and one can embrace another
religion. From this finding, which we have reproduced and the
ultimate conclusion, the Scrutiny Committee could not have arrived at
35 WP - 4945-2013-JUDGMENT
the requisite satisfaction. The necessary and requisite satisfaction in
the present case is that the petitioner's claim as belonging to Hindu
Mahar caste, is ex-facie false and fraudulent. That is the finding which
has to be recorded. It was necessary to hold that the petitioner
suppressed his religion from the Scrutiny Committee in the earlier
round. He is Christian and not a Hindu. From the documents that the
Committee relied upon including the finding in the trial Court's
judgment, it is not conclusively proved and established that the
petitioner embraced Christianity. By mere entries in the caste column
of his father and his grand-father, it cannot be said that they had
embraced Christianity and that there was, therefore, definite attempt
of misleading the Authorities subsequently. In the sense later-on the
members of the petitioner's family/blood relations prevailed upon the
statutory authorities to make changes in the caste column. That is
how subsequent documents revealed that the entries are Hindu Mahar.
If some documents of 1930 to 1950 are relied and termed as pre-
constitutional, then, there are equal number of documents from this
era or period in which the petitioner's caste is recorded as Hindu
Mahar. Even in cases of his blood relatives, the entry Hindu Mahar
appears in the caste column. These are also old and ancient
documents. The Committee could not have therefore indulged in the
36 WP - 4945-2013-JUDGMENT
exercise not warranted in the facts of the present case. If there was no
conclusive proof emerging from the record and the materials produced
by respondent no.4 were insufficient and inadequate, then, the
Committee should have maintained its earlier finding and conclusion.
45. All the more, because the petitioner relied on some
documents which establish that the Church addressed the
communication. At serial no. 26, the Salvation Army, Divisional
Headquarter, Tq. Shevgaon, District - Ahmednagar stated in its
communication / letter that the petitioner Bhanudas Hona Gajbhiv
was not baptized. Thus, no baptism ceremony was held. Equally,
Parish Priest, Holy Spirit Church, Shevgaon addressed a
communication. It is stated that the petitioner is not a member of the
Church. This document is at serial no. 27. Similarly, at serial no. 28,
the Headmaster of the Zilla Parishad, Primary School, Erandgaon, Tq.
Shevgaon, District-Ahmednagar stated that the school leaving
certificate of Sonyabapu Hona Gajbhiv contains an entry in the caste
column as Mahar. However, this document was produced by the
petitioner after the Vigilance Cell report. Since the contents thereof
were not verified, the Committee chose to discard it or omit from
consideration. We do not find anything in law, particularly, the
37 WP - 4945-2013-JUDGMENT
Maharashtra Act No. XXIII of 2001 or Rules framed thereunder which
prevented the Committee from getting in touch with the Church or the
Headmaster and obtaining from them, the clarification whether they
stand by the contents of their Certificates issued and attributed to
them or otherwise. It is in these circumstances, that the Zilla Parishad
school record of Sonyabapu, Kamal Honaji and Bhagwan was
extremely relevant. Merely because in these documents, the entries in
the caste column are Hindu Mahar, they could not have been discarded
and omitted from consideration.
46. We agree with Shri Barlinge that the Committee's order is
therefore perverse and vitiated by non-application of mind. Reliance is
placed by Shri Barlinge on the two judgments, firstly of the Hon'ble
Supreme Court in the case of The Principal, Guntur Medical College,
Guntur and others Vs. Y. Mohan Rao reported in AIR 1976 S.C.
1904. In this case, the Hon'ble Supreme Court held that a person
whose parents belonged to a Scheduled Caste before their conversion
to Christianity can, on conversion or reconversion to Hinduism, be
regarded as a member of Scheduled Caste only if he is accepted as a
member of that caste by other members of the caste. On such
acceptance, he would be eligible for the benefits of reservation of seats
38 WP - 4945-2013-JUDGMENT
of the Scheduled Castes in the matter of admission to a medical
college. Therefore, a person born of Christian converts would not
become a member of the caste to which his parents belonged prior to
their conversion to Christianity, on conversion to Hinduism
automatically as a matter of course. There has to be material to show
that if the other members of the caste accept him as a member and
admit him within the fold. However, for that purpose, there has to be
proof of a person being born as Christian and converting to Hinduism.
It is only then the latter part arises for consideration and not
otherwise.
47. A Division Bench of this Court in the case of Dipak S/o
Yohan Shinde Vs. State of Maharashtra and others reported in
2014(5) Mh.L.J. 252, heavily criticized the casual and light hearted
approach of the Scrutiny Committee. The Committee in that case,
mechanically passed an order invalidating the caste certificate issued
in favour of the Dipak S/o Yohan Shinde. No evidence in respect of
conversion of family to Christianity was produced or that the father of
the petitioner or petitioner adopted Christian faith. The Mang
community also accepted the petitioner's family as belonging to the
said caste. The reliance placed by Shri Barlinge on this judgment, is
39 WP - 4945-2013-JUDGMENT
apposite. Paragraphs 9 and 10 of this judgment, read as under:-
"9. In this context, reference can be made to a judgment
in the matter of Chatturbhuj Vithaldas Jasani vs.
Moreshwar Parashram and others, reported in AIR
1954 S. C. 236. The question that arose for
consideration before the Court was that after embracing
Mahanubhavas faith whether the appellant therein can
claim himself to be belonging to Mahar caste. While
dealing with the issue, the Supreme Court has observed,
in paragraphs 48 and 49 of the judgment as noted
below:
"(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
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 clear-cut
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
40 WP - 4945-2013-JUDGMENT
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 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."
10. In the instant matter also, there is absolutely
nothing on record to come to the conclusion that the
father of the petitioner was converted to Christianism
and has relinquished Hindu faith. There is nothing to
suggest that the father of the petitioner or his family
have been outcaste and excommunicated 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 Castes,
which is sadly a feature of Hindu Religion, continues
and the family faces such disadvantages and the
difficulties faced by the lower casts from amongst
Hindus."
41 WP - 4945-2013-JUDGMENT
48. In this regard, a reference can usefully be made to another
decision of the Hon'ble Supreme Court in the case of Rev. Stainislaus
Vs. State of Madhya Pradesh and others reported in AIR 1977 SC
908. In the context of right to Freedom of Religion guaranteed by
Article 25(1) of the Constitution of India, the Hon'ble Supreme Court
held as under:-
"15. Article 25 (1) of the Constitution reads as
follows :
"25 (1) Subject to public order, morality and
health and to the other provisions of this
Part, all persons are equally entitled to
freedom of conscience and the right freely to
profess, practise and propagate religion."
15-A. Counsel for the appellant has argued that the
right to 'propagate' one's religion means the right to
convert a person to one's own religion. On that basis,
counsel has argued further that the right to convert a
person to one's own religion is a fundamental right
guaranteed by Article 25 (1) of the Constitution.
16. The expression 'propagate' has a number of
meanings, including "to multiply specimens of (a plant,
animal, disease etc.) by any process of natural
reproduction from the parent stock", but that cannot,
for obvious reasons, be the meaning for purposes of
Article 25 (1) of the Constitution. The Article
guarantees a right of freedom of religion, and the
expression 'propagate' cannot therefore be said to have
been used in a biological sense.
17. The expression 'propagate' has been defined in the
42 WP - 4945-2013-JUDGMENT
Shorter Oxford Dictionary to mean "to spread from
person to person, or from place to place, to disseminate,
diffuse (a statement, belief, practise, etc.)".
18. According to the Century Dictionary (which is an
Encyclopedic Lexicon of the English Language) Vol. VI,
'propagate' means as follows :-
"To transmit or spread from person to person
or from place to place; carry forward or
onward; diffuse; extend; as to propagate a
report; to propagate the Christian religion."
19. We have no doubt that it is in this sense that the
word 'propagate' has been used in Article 25 (1), for
what the Article grants is not the right to convert
another person to one's own religion, but to transmit or
spread one's religion by an exposition of its tents. It has
to be remembered that Article 25 (1) guaranees
"freedom of conscience" to every citizen, and not merely
to the followers of one particular religion, and that, in
turn, postulates that there is no fundamental right to
convert another person to one's own religion because if
a person purposely undertakes the conversion of
another person to his religion, as distinguished from his
effort to transmit or spread the tenets of his religion,
that would impinge on the "freedom of conscience"
guaranteed to all the citizens of the country alike.
20. The meaning of guarantee under Article 25 of the
Constitution came up for consideration in this Court in
Ratilal Panachand Gandhi v. The State of Bombay,
(1954) SCR 1055 = (AIR 1954 SC 388) and it was
held as follows :-
"Thus, subject to the restrictions which this
Article imposes, every person has a
fundamental right under our Constitution
not merely to entertain such religious belief
as may be approved of by his judgment or
43 WP - 4945-2013-JUDGMENT
conscience but to exhibit his belief and ideas
in such overt acts as are enjoined or
sanctioned by his religion and further to
propagate his religious views for the
edification of others".
This Court has given the correct meaning of the Articles,
and we find no justification for the view that it grants a
fundamental right to convert persons to one's own
religion. It has to be appreciated that the freedom of
religion enshrined in the Article is not guaranteed in
respect of one religion only, but covers all religions
alike, and it can be properly enjoyed by a person if he
exercises his right in a manner commensurate with the
like freedom of persons following the other religions.
What is freedom for one, is freedom for the other, in
equal measure, and there can therefore, be no such
thing as a fundamental right to convert any person to
one's own religion. "
49. Even before us, the petitioner relied upon an independent
document, namely, Hadola Patrak. There was no reason to discard it.
The Committee does not even assign any reason to discard it. It
completely misdirected itself when it relies on the observations of the
trial Court's judgment in the Sessions Case/Atrocity Case. It also
misdirects itself when it relies upon the report whereby it is certified
that dead body of the petitioner's father was burried and there was no
cremation peculiar to Hindu religion nor any ceremonies. To our
mind, merely because of some burials and referred to in the report of
the Vigilance Cell, that too of 2012-2013, it was not proper to have
44 WP - 4945-2013-JUDGMENT
concluded anything against the petitioner. Though the petitioner may
have relied upon the lack of Baptism ceremony and there was a
communication from the Church, yet, the Committee relied on the
Vigilance Cell report and the conclusion therein to the effect that this
Mukti Fauj Missionary do not organize such a ceremony nor performs
the rituals. The casual approach is also revealed when the Committee
records that when the Vigilance Cell visited the houses of the
petitioner's brother Sonyabapu and one Kondiram Hona Gajbhiv and
his son Bhagwan, no photograph of Bhagwan Buddha or Dr.
Babasaheb Ambedkar was found. It is in these circumstances, that we
are of the opinion that the impugned order cannot be sustained.
50. Reliance is placed by Shri Kale, on the judgment of the
Hon'ble Supreme Court in the case of S. Swvigaradoss v. Zonal
Manager, F.C.I. reported in AIR 1996 S.C. 1182. There, the facts
were as under :-
"The petitioner's parents initially belonged to Adi-
Dravida by caste hailing from Kattalai village in
Tirunelveli District, Tamil Nadu. Admittedly, before his
birth, they had converted into Christian religion. He
was born on May 7, 1941. He joined the service of the
Food Corportion of India on Marcy 7, 1968 as Assistant
Grade-I. Subsequently, he had married on February 14,
1969 according to Christian rites in a Church. On these
45 WP - 4945-2013-JUDGMENT
facts, notice was given to the petitioner to show cause
how the petitioner would be entitled to benefits and
privileges extended to the Scheduled caste candidates in
future. Challenging it, he filed a suit. His case is that
he was baptised when he was a minor. After he became
major, he is continuing as a Adi-Dravida. The trial
Court though decreed the suit, on appeal it was reversed
and in S.A. No. 270/84, the High Court confirmed the
same. Thus this Special Leave Petition.
2. It is contended for the petitioner that though he was
born of Christian parents, but with their consent, he got
converted to Hindu at the age of 14 and on such
conversion, he became Adi-Dravida and consequently
entitled to the status of Scheduled Caste. Therefore, he
is entitled to the status as a Scheduled Caste, Article
366(24) of the Constitution of India defined Scheduled
Caste as under:
"Art. 366(24) Scheduled Caste means such
castes, races or tribes or parts of or group
within such castes, races or tribes as are deemed
under Article 341 to be Scheduled Castes for the
purposes of this Constitution."
51. In the above circumstances, the Hon'ble Supreme Court
referred to all the judgments in the field, including "Madhuri Patil's"
case and held that the Courts have no power except the President of
India, to subtract or add to the notifications, notifying the Scheduled
Castes and Scheduled Tribes. In that case, the admitted position was
that the petitioner was born to Christian parents and his parents also
were converted prior to his birth, to Christianity, he no longer
46 WP - 4945-2013-JUDGMENT
remained Adi-Dravida, a Scheduled Caste for the purpose of
Tirunelvedi District in Tamil Nadu. He therefore could not have
claimed to be Scheduled Caste. The judgment is rendered essentially
on the facts noted by the Hon'ble Supreme Court and reproduced
above. It cannot be of any assistance in the present case.
52. As a result of the above discussion, the Writ Petition
succeeds. Rule is made absolute in terms of prayer clause (B).
Consequently, the Certificate of Validity issued to the petitioner on
24/04/2007 bearing no. 4270 validating his claim as 'Hindu Mahar
Scheduled Caste' is restored. In the circumstances, there would be no
order as to costs.
[MANGESH S. PATIL] [S.C. DHARMADHIKARI]
JUDGE JUDGE
arp/
