Akshay Vasant Thakur And ANR v. State Of Maharashtra, Through Secretary, Tribal Development Dept And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATTE JURISDICTION CIVIL APPLICATION NO.2887 OF 2016 IN WRIT PETITION NO.4977 OF 2013 Akshay Vasant Thakur and Another

...Petitioners

vs.

State of Maharashtra and Others

...Respondents

Mr. R.K. Mendadkar, for the Petitioners Ms. Nisha Mehra, AGP for the Respondents-State. CORAM : SHANTANU S. KEMKAR & PRAKASH D. NAIK, JJ.

DATE :

JANUARY 20, 2017 P.C.:

.

Parties through their counsel.

2.

Through this Petition filed under Article 226 of the Constitution of India, the Petitioners have assailed the order dated 6th May, 2013 passed by the Scheduled Tribe Certificate Scrutiny Committee, Thane (Respondent No.2) whereby the Petitioners' claim for caste validation has been rejected. The grievance of the petitioners is that though he had submitted Caste Validity Certificate granted in favour of his cousin paternal aunts namely Shobha R. Thakur and Kalpana R. Thakur but the said Committee has discarded the same on the ground that the same would not be conclusive proof and 1/5

would not absolve the Petitioners from discharging the burden cast on him to produce the relevant evidence. According to the learned counsel appearing for Petitioners, 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.

3.

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

4.

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 2/5

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."

5.

Thus in our considered view, the reason assigned by the Respondent No.2 - Committee for rejection of the Petitioners' 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 Petitioners' caste validity claim afresh keeping in view the certificates of his cousin paternal aunts namely Shobha R. Thakur and Kalpana R. Thakurr as also keeping in view the law laid down by the Division Bench of this Court in the case of Apoorva Nichale (supra). 6.

The Petitioner to appear before the Committee on 7th February, 2017 at 11.00 am.

7.

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

8.

As a result, Respondent No. 4 - College is directed to release the original school leaving certificate of S.S.C. and H.S.C. 4/5

examination and mark-sheet of 8th standard examination of the Petitioner.

9.

The interim order if any, to continue till the matter is decided by the Committee.

10.

The Petition as well as Civil Application stand disposed of as such.

(MAKARAND KARNIK, J.) (SHANTANU KEMKAR, J.) 5/5