Bombay High Court
Mathurabai Shankar Benade vs The State Of Maharashtra And ... on 5 May, 2017
Bench: S.V. Gangapurwala
1 W.P.No.6295/16
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.6295 OF 2016
Mathurabai W/o Shankar Benade
Age 36 years, Occ.Household,
R/o Jamner, Taluka Jamner,
Dist.Jalgaon. ... Petitioner.
Versus
1. The State of Maharshtra,
through the Secretary,
Social Welfare and Special
Assistance Department,
M.S.Mantralaya, Mumbai.
2. The District Collector,
District Jalgaon.
3. The Sub-Divisional Officer,
Jalgaon Sub-Division,
District Jalgaon.
4. The Municipal Council,
Jamner, through the Chief
Executive Officer,
Taluka Jamner, Dist.Jalgaon.
5. The Divisional Caste
Certificate Scrutiny
Committee, Nasik No.2,
Dhule.
6. Sunita W/o Sanjay Benade,
Age 38 years, Occ.Household,
R/o Jamner, Taluka Jamner,
District Jalgaon. ... Respondents.
::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 01:00:57 :::
2 W.P.No.6295/16
Mr.R.S.Deshmukh, advocate for the petitioner.
Mr.P.S.Patil, Additional Government Pleader for
the State.
Mr.G.V.Wani, advocate for the Respondent No.4.
Miss.P.S.Talekar, advocate for Respondent No.6.
...
CORAM : S.V.GANGAPURWALA AND
K.L.WADANE,JJ.
Reserved on : 02.03.2017
Pronounced on : 05.05.2017
JUDGMENT (Per S.V.Gangapurwala,J.)
1. The caste claim of the petitioner as
belonging to Pardesi (OBC) is invalidated by the
Divisional Caste Certificate Scrutiny Committee,
Nasik No.2, Dhule under its judgment and order
dated 11.5.2016. The said judgment is assailed
in the present Writ Petition.
2. Mr.R.S.Deshmukh, learned counsel for
the petitioner strenuously contends that the
petitioner had filed voluminous documents on
record to substantiate her caste claim. The
documents were also of pre-independence period
having great probative value. However, the
Committee committed grave error in discarding the
said documents. The learned counsel submits that
the petitioner in support of her caste claim as
belonging to Pardesi (OBC) had submitted extract
of appendix 14 of Births and Deaths Register of
pre-independence period of the great grand-father
of the petitioner, so also the death certificate
of the great grand-father of the petitioner
Mithusing Jaising Pardesi. The name itself shows
the caste of the petitioner's great grand father.
Even the extract of mutation entry register of
village Gondkhel, Taluka Jamner, District Jalgaon
corroborates the case of the petitioner and the
sawp6295me is in conformity with the genealogy
submitted by the petitioner. The said document
also proves the caste of the petitioner and her
fore-father as Pardeshi. The learned counsel
further submits that during the course of the
proceedings the Respondent No.5 Committee
addressed a letter to the expert of Modi script
i.e. Rajwade Research Centre, Dhule, and sought
its expert opinion about the interpretation of
the word "Pudeshi". The expert i.e. Rajwade
Research Centre communicated to the Respondent
No.5 and confirmed that the word "Pudeshi" is to
be read as Pardesi. According to the learned
counsel, the said fact would unequivocally
establish that in pre-independence document of
the great grand father of the petitioner, the
caste is consistently recorded as Pardesi.
3. The learned counsel further submits
that while passing the judgment perverse
observations are made by the Respondent No.5
Committee and the observations show total non-
application of mind of the Members of the
Committee. The petitioner never claimed that she
is descendant of Maharanapratap, yet the
Committee in its judgment recorded that the
petitioner claimed to be the descendant of
Maharanapratap. The Committee failed to
appreciate that it is the specific case of the
petitioner that son of Mr.Jaising Tansing Pudeshi
is her grand father and Pudeshi has to be read as
Pardeshi is clarified by the expert. It is
submission of the learned counsel that the
petitioner discharged her burden to establish her
relationship with the child born to Mr.Jaising
Tansing in the form of the statement of Madan
Pardeshi, coupled with the revenue record. Madan
Hari Pardesi, has also further stated that
petitioner is her niece and clarified about the
relationship of Kesarbai, so also that Mithusing,
Mitharam and Ramchandra are names of one person.
Madan Hari Pardeshi being a member of the said
family has special knowledge of his ancestors and
relationship. The said statement of Madan
Pardeshi would have a strong evidential value.
There is no contra evidence on record to
disbelieve his statement. Kesarbai is the sister
of the great grand father of the petitioner and
in her record the caste is shown as Pardeshi.
The said document is also of pre-independence
period. The Vigilance cell report also
specifically states that the Vigilance verified
the details of Kesarbai Jaising Pardesi and it
was found that her caste has been recorded as
Pardeshi. All this record proves the caste of
the petitioner as Pardeshi.
4. The learned counsel for the petitioner
further submits that the caste certificate
obtained by the son of the petitioner of Rajput
would not come in the way of the petitioner to
establish her caste as Pardesi as the petitioner
would get her caste from her paternal family and
the son would get his caste from his parental
family i.e. her husband.
5. Mr.Deshmukh, learned counsel further
submits that the Committee ignored the reports
submitted by the Vigilance Cell from time to
time. The Respondent No.5 Committee incorrectly
recorded observations about the occupation of
ancestors as stated by the petitioner. The
petitioner specifically stated in her evidence
that occupation of her ancestors was theft,
dacoity etc. Over the period, the occupation has
changed from theft, dacoity to agriculture and
such social change is bound to occur due to
spread of education and awareness across
generation. The Committee incorrectly appreciated
statement of Bhagatsing Pardeshi. In his
statement he specifically stated that his caste
is Pardeshi, however, the Committee recorded in
its judgment that he stated his caste as Pardeshi
Bhamta. According to the learned counsel in the
affinity test, the Respondent No.5 found the
rituals followed in the case of birth, death,
soundal are not similar to those followed in
Pardeshi, however, this is not conclusive proof
to decide the caste claim of the petitioner. At
the same time the Respondent No.5 Committee has
not observed any inconsistency in the statement
of petitioner with regard to ritual followed in
marriage, Khanamati, Telmandav, deity, surnames,
Halad Samarambh. The learned counsel submits
that merely on the basis of affinity test and
ethnic linkage the whole caste claim ought not to
have been decided and the Committee was expected
to consider the caste claim in light of the
documents of pre-independence period, the report
of Vigilance.
6. The learned counsel to substantiate his
contention that the evidence of Madan Hari
Pardeshi ought to have been accepted with regard
to relationship relies on the judgment of the
Apex Court in the case of "Dolgobinda Paricha Vs.
Nimai Charan Misra and others" reported in AIR
1959 Supreme Court 914. The learned counsel
relying on the judgment of the Apex Court in a
case of "Anand Vs. Committee for Scrutiny and
Verification of Tribe Claims and others" reported
in AIR 2012 Supreme Court 314, submits that the
documentary evidence produced has to be
considered in a proper perspective and the
documents of pre-independence period will have
more evidential value and the affinity test may
not be regarded as a litmus test.
7. Learned counsel further submits that
proper opportunity is not given to the
petitioner. The petitioner was present on the
given date, since morning, however, it was
wrongly recorded in the Roznama that the
petitioner remained present before the Committee
at 5-25 p.m. The same is erroneous. While
remitting the matter in the earlier round of
litigation, this Court never expected the
Respondent No.5 to disturb any other issue, that
of genealogy or identity of the petitioner and
sisters but was expected to give its comment only
on affinity test. The Committee could not have
reopened the issues at the instance of Respondent
No.6. The learned counsel submits that the
judgment of the Committee be set aside and the
caste claim of the petitioner as belonging to
Pardeshi (OBC) be validated.
8. Miss. Talekar, learned counsel for
Respondent No.6 submits that the opportunity of
hearing was given to the petitioner on two
occasions and yet the petitioner and her lawyer
did not appear on both the occasions. The
Committee decided the matter based on written
statement of the petitioner, the vigilance
reports, documents and also the affinity and
ethnic linkage. The learned counsel submits that
Ramchandra Mithusing, Mithu and Mitharam are not
one and the same person. If their record is
perused, the date of birth of all these persons
is different. The date of birth of Ramchandra in
different records is recorded as 1.6.1990, that
of Mithusing Jaising is recorded as 29.7.1919. As
far as Mithu Jaising, there is no record of date
of birth, so also there is no record of date of
birth of Mitharam Jaising. When their date of
birth is separately recorded, they can not be one
and the same person. The petitioner has failed
to establish her- genealogy. The School record of
the cousin grand father of the petitioner Hari
Jaising Pardeshi of 1.5.1931 records caste as
Rajput, whereas the record of 1.10.1934 records
caste as Pardeshi. The real brother of the
petitioner namely Dilip Shivram Rajput, is issued
caste certificate of Rajput on 2.8.1988 and has
taken benefit of VJ category while seeking his
appointment as a Teacher in the School. The son
and daughter of the petitioner are using the
caste certificates of Rajput, the same falls in
VJ category. Four times Vigilance has been
conducted. There is also contradiction in the
statements of the petitioner regarding the
sibling of her grand father whose record she
claims to rely to show Pardeshi caste. According
to the affidavit showing genealogy sworn by the
petitioner one Nathabai Jaising Pardeshi was
having only two children, Mithu Jaising and Hari
Jaising, whereas according to the statements made
before 4th Vigilance by the petitioner and her
cousin brother Madan Hari Pardeshi, Nathabai
Jaising had two male and two female children.
9. Learned counsel further submits that in
the record of Mithusing @ Ramchandra Jaising
Pardeshi, wherein date of birth is said to be
1.6.1919, caste is recorded as Rajput. In the
record of Hari Jaising Pardeshi cousin grand
father of the petitioner - caste is shown as
Rajput. Kesar Jaising Pardeshi i.e. grand
father's sister shows caste as Pardeshi but her
real brother's caste is recorded as Rajput.
According to the learned counsel four times
Vigilance is conducted and contradictory
statements are given with regard to occupation,
family deity. The record of the father of the
petitioner also depicts caste as Rajput. The
petitioner can not prove her caste as Pardeshi
either from documents nor from affinity. The
Committee has rightly rejected the caste claim of
the petitioner.
10. The learned A.G.P. appearing for
Respondent No.5 also supports the judgment.
11. We have considered the submissions
canvassed by the learned counsel for respective
parties, so also have gone through the documents
produced.
12. If we go through the documents produced
on record, it is manifest that as far as School
record of the petitioner is concerned, the same
is not consistent. In one School record, the
caste of the petitioner is recorded as Hindu
Bhamta Rajput. In the School record of the real
brother of the petitioner, caste is recorded as
Rajput Bhamta. The real brother of the
petitioner has obtained the caste certificate of
Rajput Bhamta. The service record of the
petitioner's real brother Dilip records his caste
as Rajput Bhamta. Even in respect of the School
record of the father of the petitioner of the
year 1953, the caste is recorded as Hindu Rajput.
As far as cousin grand father of the petitioner
is concerned, one School record of said Hari
Jaising Pardeshi records caste as Pardeshi and
another document as Rajput. As far as great
grand father of the petitioner is concerned,
there is a dispute. In the School record of the
great grand father namely Ramchandra Jaising, the
caste is recorded as Rajput, whereas that of
Mithusing does not record the caste. The
petitioner contends that Ramchandra, Mithusing
and Mithalal are all names of one person. If
that is so then the School record of Ramchandra
specifically record caste as Rajput. The
documents are not consistent to show the caste of
petitioner as Pardeshi but the uncontroverted
documents of the real father of the petitioner,
real brother of the petitioner shown caste being
recorded as Rajput. The record of the father of
the petitioner dates back to the year 1953.
Even the record of the grand father Ramchandra
shows the caste recorded as Rajput. Coupled with
all these documents, the petitioner also could
not successfully prove the affinity test.
13. It is true that affinity test can not
be a litmus test to prove caste. It can be a
corroborative piece of evidence. In the present
case majority of the documents on record of the
petitioner and her ancestors refer the caste as
'Rajput'. The affinity test would be relevant.
However, as observed by the Committee, the
petitioner could not also prove ethnic linkage
and the affinity with that of Pardeshi caste.
The Committee certainly has to scrutinise the
documents and for the said purpose Vigilance has
been conducted four times. Going through the
judgment delivered by the Committee it transpires
that the Committee has considered Vigilance
report and the documents thread-bare and has
arrived at a plausible conclusion. The judgment
can not be said to be perverse. The petitioner
could not explain the documents. The
Vigilance has scrutinised the documents showing
the caste recorded as Rajput in respect of her
father, real brother and cousin grand father, so
also great grand father. Though in the School
record of the real sister of the grand-father of
the petitioner Kesarbai, the caste is recorded as
Pardeshi, still, the said document would lose its
evidential value when in the record of the real
brother of Kesarbai, the caste is recorded as
Rajput. Moreover, the father and real brother of
the petitioner also claim to belong to Rajput
caste. The real brother of the petitioner has
also taken benefit of the said caste while
seeking appointment as a Teacher.
14. Considering the aforesaid conspectus of
the matter, we do not find any error committed by
the Committee in invalidating the caste claim of
the petitioner as belonging to Pardeshi caste.
15. In the result, the Writ Petition is
dismissed. However, there shall be no order as
costs.
Sd/- Sd/-
(K.L.WADANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp6295.16
