Suvarna Vijay Kharat vs The State Of Maharashra Thr Its ...
2023 Latest Caselaw 7128 Bom

                                       1                      WP / 824 / 2015


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                         WRIT PETITION NO. 824 OF 2015

Suvarna D/o. Vijay Kharat
Age : 20 years, Occu : Student,
R/o. Chedgaon, Post. Brahamni
Tq. Rahuri, Dist. Ahmednagar                                   .. Petitioner

       Versus

1] The State of Maharashtra,
   Through its Secretary
   Higher & Technical Education,
   Maharashtra State Mantralaya,
   Mumbai - 32

2] The Divisional Caste Scrutiny Committee,
   Nashik Division, Nashik

3] Tatyasaheb Kore Dental College &
   Research Center,
   Nave-Pargaon, Varna-nagar,
   Dist. Kolhapur                                                .. Respondents

                                      ...
                   Advocate for petitioner : Mr. V.S. Bedre
          Addl.GP for the respondent - State : Mrs. M.A. Deshpande
                      Respondent no. 3 served - absent
                                      ...

                        CORAM              : MANGESH S. PATIL &
                                             SHAILESH P. BRAHME, JJ.

                        RESERVED ON   : 12 JULY 2023
                        PRONOUNCED ON : 18 JULY 2023

JUDGMENT (MANGESH S. PATIL, J.) :

Heard.

2. Rule. Rule is made returnable forthwith. Learned AGP

waives service for the respondent - State. At the joint request, the

matter is heard finally at the stage of admission.

2 WP / 824 / 2015

3. By this petition under Article 226 of the Constitution of

India, the petitioner is challenging the judgment and order passed by

the respondent no. 2 - Divisional Caste Scrutiny Committee constituted

under the Maharashtra Scheduled Castes, Scheduled Tribes,

Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward

Classes and Special Backward Category (Regulation of Issuance and

Verification of) Caste Certificate Act, 2000, in a proceeding under

section 7, refuting her claim as belonging to Hindu Mahar scheduled

caste.

4. The learned advocate Mr. Bedre for the petitioner submits

that the petitioner belongs to Hindu Mahar community. Her native is

from Rahuri taluka, district - Ahmednagar. Though there was ample

material collected by the vigilance cell and available with the scrutiny

committee to be looked into the committee has proceeded with a

prejudiced mind. It has clearly ignored the favourable entries which

were ample in number but readily accepted some record which was not

even enough to entertain a doubt about petitioner's family having been

converted to Christianity. The church had clearly informed the vigilance

cell that none of the family members was ever baptized and none was

the member of the church in the vicinity of their village. Besides there

was old school record pointing out that the petitioner's paternal

ancestors have been Mahar. There was sufficient and cogent material

3 WP / 824 / 2015

before the scrutiny committee even before it had entertained some

doubt about such religious conversion, to emphatically reach such a

conclusion. The committee illegally referred to observations of this

Court in writ petition no. 5105 of 2013 dated 10-09-2013 in the matter

of Santosh Shirsat V. Maharashtra State and others where there

was material to draw inference that the family had converted to

Christianity. Such is not the case here except the fact that during the

home visit the vigilance officer had seen the cross and a bust of Jesus

Christ inside the house. There was no material before the scrutiny

committee to reach the conclusion it has. The observations are clearly

perverse, arbitrary and deprive the petitioner a social status and the

benefits derivable therefrom.

5. Per contra, the learned AGP supported the inference

drawn by the scrutiny committee. She submitted that availability of the

evidence gathered during the vigilance cell was decisive. In the

petitioner's house a cross was painted on the entrance. There was a

bust of Jesus Christ. Burials have taken place like those are followed

in Christian community. Even names of some of the family members

are typical of that community. Though the petitioner's paternal aunt Jai

and Maribai are stated to be belonging to Mahar community in their

school record, the names do not tally. Her grandfather is Keru Kondiba

Kharat whereas names of these two women of whom school record

was collected are Jaibai Mohan Kharat and Maribai Mohan Kharat.

4 WP / 824 / 2015

The learned AGP would further submit that even the revenue record is

not correct and reliable though the photographs of petitioner's marriage

prima facie show performance of Hindu rituals, those photographs

were not produced before the scrutiny committee. The scrutiny

committee, therefore, was right in discarding that evidence. The

decision has been reached by plausible appreciation of the material

and this Court cannot sit in appeal.

6. We have carefully considered and appreciated the rival

submissions and perused the papers.

7. At the outset, it is necessary to note that though the

petitioner is heavily relying upon the school record of two women Jaibai

Mohan Kharat and Maribai Mohan Kharat and though the first name of

her paternal aunts tally, her grandfather's name is Keru Kondiba Kharat

whereas the school record of Jaibai Mohan Kharat and Maribai Mohan

Kharat has been produced. That being the case, according to us, the

scrutiny committee has not committed any error in discarding this

evidence.

8. However, admittedly the school record of the petitioner's

father of 1974 refers to him as Hindu Mahar. There are no allegations

about there being any manipulation in this school record. Even there is

a revenue record in the form of revenue receipt of 30-05-1956 and

30-04-1929 and which were produced before the scrutiny committee

5 WP / 824 / 2015

wherein at least on the receipt dated 30-04-1929, grandfather of the

petitioner Kondiba Kanhu Kharat has been expressly described as

Mahar. Even the committee while discarding the documents produced

by the petitioner has expressly referred to it at serial number 9 and

even noticed that word 'Mahar' is appearing against Kondiba Kanhu

Kharat but has discarded it on the ground that these receipts are not

indicative of the land having been given as a Mahar Watan.

9. Such a reasoning is clearly perverse and arbitrary. The

committee was not called upon to consider if the family was holding

some Mahar Watan land. It was called upon to consider if this old

record was sufficient to substantiate, as a circumstance such a claim

when there is a specific reference in this revenue receipt of petitioner's

grandfather as Mahar. When there is no doubt about it being a genuine

document, the committee could not have discarded it when it prima

facie shows that petitioner's grandfather was being treated as Mahar in

the year 1929 and he could not have willingly accepted when there was

un-touchability in existence. This was in our considered view, a

clinching material to substantiate petitioner's claim.

10. Again, even if a cross was seen to have been painted on

the entrance of the house and there was a bust of Jesus Christ found

inside the house during the enquiry, the committee has not discussed

as to why the explanation offered by the petitioner that it was a house

6 WP / 824 / 2015

of her paternal uncle Rajendra and not the house of his father was to

be discarded. The committee has discarded it saying that the

information was furnished by the petitioner's grandfather Keru.

11. Even if for the sake of argument, it is accepted that it was

a house of the petitioner's father, still, when it comes to conversion to a

different religion, the committee ought to have borne in mind that a

person gets caste by birth and remains forever unless there are

circumstances indicative of the individual having embraced not only a

new order but has been outcaste from the original order. It is in this

respect when the committee was made known by the vigilance report

that the enquiry with the Church in the vicinity of the petitioner's native

had clearly informed that there was no baptism of any of the

petitioner's family members and they were not members of that church,

merely because of finding the cross painted on the entrance and

availability of a bust of Jesus Christ inside the house, in our considered

view, is not sufficient for the committee to reach a conclusion about

petitioner's conversion to Christianity and renouncing of the caste.

There was no concrete proof before the committee to reach such a

drastic conclusion.

12. In this regard, it would be apposite to reproduce some of

the observations of this Court in the matter of Bhanudas Hona

Gajbhiya Vs. State of Maharashtra and others; 2017(5) Bom.C.R.

7 WP / 824 / 2015

252. It was also a similar case regarding alleged conversion of a Hindu

Mahar to Christianity.

"31. .........

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.

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 Clauses 24 and 25 of Article 366 contains the same definitions, of Scheduled Castes and Scheduled Tribes and referrable to Articles 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.

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

8 WP / 824 / 2015

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 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 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."

In the process, observations of the Supreme Court in the matter of

Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and

others; AIR 1954 S.C. 236 were also referred from paragraphs no. 48

and 49.

"(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

9 WP / 824 / 2015

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 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."

13. Bearing in mind these principles, there is absolutely dearth

of any material before the committee which could have enabled us to

undertake a scrutiny from the angle discussed hereinabove before

discarding the petitioner's claim on the ground of availability of only few

of the circumstances hinting at the alleged conversion to Christianity.

10 WP / 824 / 2015

14. There is one more circumstance relied upon by the

scrutiny committee to draw the inference which it has. On the basis of

the report of the vigilance cell it has found that some of the petitioner's

relations were buried as a ritual and since even the Christianity follows

the same mode of last rites, the petitioners family must be Christian.

15. Pertinently, in a reply to the vigilance cell report, the

petitioner had expressly admitted about such burials having taken

place in her family but she had expressly mentioned that such was a

ritual being followed even in her Mahar caste. The committee has no

explanation to discard this stand of the petitioner. Besides, the

vigilance cell does not mention that such burials had taken place in

Christian burial grounds. If such was the material before the committee,

the conclusion drawn by it referring to this circumstance is again a

perverse and arbitrary finding.

16. It is important to note that this was not the state-of-affairs

and material available before the committee in the matter of Santosh

Shirsat (supra) wherein the ancestors of the claimants therein were

found to have been buried in christian burial grounds and plaque were

found at the site. There was evidence that the relatives had visited

Church and even the marriage of the daughter was performed as per

Christian customs. Such is not the case in the matter in hand.

11 WP / 824 / 2015

17. The petitioner has been married apparently according to

Hindu rites. Photographs were made available to the scrutiny

committee. The revenue record at least referred to the petitioner's

grandfather as Mahar way back in the year 1929 and except the cross

having been painted at the entrance and finding of a bust of Jesus

Christ inside the house, there was absolute no material before the

committee to discard the petitioner's claim. The observations and

conclusions of the committee are clearly perverse, arbitrary and

capricious.

18. Writ petition is allowed.

19. Impugned order is quashed and set aside.

20. The respondent no. 2 - Divisional Caste Scrutiny

Committee shall issue caste validity certificate to the petitioner as

Hindu Mahar within two weeks.

21. Rule is made absolute accordingly.

  [ SHAILESH P. BRAHME ]                        [ MANGESH S. PATIL ]
         JUDGE                                        JUDGE

arp/