Jayesh Yashwant Pawar v. State Of Maharashtra Through Its Secretay And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL SIDE APPELLATE JURISDICTION WRIT PETITION NO. 5616 OF 2017 Jayesh Yashwant Pawar

...Petitioner

vs.

State of Maharashtra and Ors.

...Respondents

Mr. R.K. Mendadkar for the Petitioner.

Mr.Ajit Pitale for respondent no. 3.

Mr. A.P. Vanarse, AGP for the Respondent nos. 1, 2 and 4 State. CORAM :

SHANTANU KEMKAR & M.S. SONAK, JJ.

JULY 26, 2017 P.C.:

Heard parties through their counsel.

2.

Through this Petition filed under Article 226 of the Constitution of India, the Petitioner has assailed the order passed by the Divisional Caste Certificate Scrutiny Committee, (Respondent No.2) whereby the Petitioner's claim for caste validation has been rejected. The grievance of the petitioner is that though he had submitted Caste Validity Certificate granted to him by the Committee in favour of his cousin sister, but the Committee has discarded the same on the ground that the same would not be conclusive proof and would not absolve the Petitioner from discharging the burden cast on

him to produce the relevant evidence. According to the learned counsel appearing for Petitioner, the decision runs contrary to the Division Bench judgment of this Court in the case of Apoorva Vinay Nichale v/s Divisional Caste Certificate Scrutiny Committee No.1 and others, reported in 2010(6) Mh.L.J. 401 which was based upon the Supreme Court judgment passed in the case of Raju Ramsing Vasave v/s Mahesh Deorao Bhivapurkar and others, reported in (2008) 9 SCC 54 as also the case of Anand Vs Committee for Scrutiny and Verification of Tribe Claims and Ors. (2012) 1 Supreme Court Cases 113.

4.

On the other hand, the learned AGP has supported the impugned order.

5.

Having considered the submissions and having gone through the order passed by the Division Bench of this Court in the case of Apoorva Vinay Nichale (supra), we find that the Division Bench has in paragraphs 7 and 9 observed thus : "7.

We thus come to the conclusion that when during the course of enquiry the candidate submits a caste validity certificate granted earlier certifying that a blood relation of the candidate belongs to the same caste as that claimed by the applicant, the committee may grant such certificate without calling for Vigilance Cell Report. However, if the committee finds that the earlier caste certificate is tainted by fraud or is granted without jurisdiction, the Committee may refuse to follow and may refuse to grant certificate to the applicant

before it.

9.

In the present case, we find that the committee has disbelieved the petitioner's case that she belongs to Kanjar Bhat after calling the school leaving certificate of Petitioner's father and noticing that the original caste written on it was 'Thakur' and that was subsequently changed to Kanjar Bhat. The committee observed that the caste has been changed without complying with the procedure prescribed by section 48(e) and 132(3) of Mumbai Primary Education Act. In fact, the caste has been changed on the basis of the affidavit. From the findings of the committee it appears that the committee has observed that the change of caste has been one illegally. Obviously, the committee which decided the caste claim of the petitioner's sister did not hold the same view, otherwise it would have refused to grant validity.

In the circumstances, we are of the view that the committee which has expressed a doubt about the validity of caste claim of the petitioner and has described it as a mistake in its order, ought not to have arrived at a different conclusion. The matters pertaining to validity of caste have a great impact on the candidate as well as on the future generations in many matters varying from marriage to education and enjoyment, and therefore where a committee has given a finding about the validity of the caste of a candidate another committee ought not to refuse the same status to a blood relative who applies. A merely different view on the same facts would not entitle the committee dealing with the subsequent cast claim to reject it.

There is, however, no doubt as observed by us earlier that if a committee is of the view that the earlier certificate is obtained by fraud it would not be bound to follow the earlier caste validity certificate and is entitled to refuse the caste claim and also in addition initiate proceedings for cancellation of the earlier order. In this view of the matter, we are of the view that the petition must succeed. Rule is made absolute in above terms. The Caste Scrutiny Committee is directed to furnish the caste validity certificate to the Petitioner." 6.

Thus in our considered view, the reason assigned by the Respondent No.2 - Committee for rejection of the Petitioner's claim cannot be sustained as it runs contrary to the view taken by the

Division Bench of this Court in the case of Apoorva Vinay Nichale (supra). In the circumstances, we set aside the impugned order and remand the matter back to the Committee for deciding the Petitioner's caste validity claim afresh keeping in view the certificates of his cousin sister as also keeping in view the law laid down by the Division Bench of this Court in the case of Apoorva Nichale (supra) and Anand (supra).

7.

The Petitioner to appear before the Committee on 22nd August, 2017 at 11.00 am.

8.

The Committee to take appropriate decision as aforesaid within four months from the date of Petitioner appearing before the Committee.

9.

The interim order passed earlier by this court to continue till the matter is decided by the Committee.

10.

The Petition stands disposed of as such.

(M.S. SONAK, J.) (SHANTANU S. KEMKAR, J.)