Shweta Shivshankar Phule v. The State Of Maharashtra Through Its Secretary And Ohters

1 940.9185.19 wp.doc ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9185 OF 2019 Shweta Shivshankar Phule ..Petitioner.

V/s.

The State of Maharashtra & Ors.

..Respondents.

Mr. P. V. Jadhavar for the petitioner Mr. A. A. Kumbhkoni, Advocate General with Mr. P. P. Kakade, Govt. Pleader with Smt. Neha Bhide Counsel 'B' panel for the State CORAM : NITIN W.SAMBRE AND G.S.KULKARNI, JJ.

DATE : AUGUST 21, 2019 P.C.:- With consent of the parties, heard fnally and disposed of.

2.

By this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 18/07/2019 passed by the Scheduled Tribe Certifcate Scrutiny Committee, Aurangabad in short "the Committee" whereby the petitioner's claim for Tribe validation as belonging to "Koli Mahadev" has

2 940.9185.19 wp.doc been rejected.

3.

The grievance of the petitioner is, though Caste Validity Certifcates granted by the Committee in favour of Shivshankar Raghuram Phule father of the petitioner on 10/05/2011, Laxman Raghuram Phule granted on 10/5/2011 and Santosh Raghuram Phune granted on 25/03/2010 were relied upon, the Committee has discarded the same on the ground that the same would not absolve the Petitioner from discharging the burden of the production of the relevant evidence. The Committee also took a view that the validity certifcates have been granted to Shivshankar, Laxman and Santosh, without taking into account the interpolation/adverse entries in the documents, on which reliance was placed at the time of issuance of the validity certifcate by its holders. It is stated by the Respondent-State that appropriate show cause notices have already been issued to the caste validity certifcate holders.

4.

According to the learned counsel appearing for petitioner, the decision of the Committee runs contrary to the Division Bench judgment of this Court in the case of Apoorva

3 940.9185.19 wp.doc Vinay Nichale v/s Divisional Caste Certifcate Scrutiny Committee No.1 and others1 which was based upon the Supreme Court judgment passed in the case of Raju Ramsing Vasave v/s Mahesh Deorao Bhivapurkar and others2 So also the in the case of Anand vs. Committee for Scrutiny and Verifcation of Tribe Claims and Others3 5.

The Division Bench in the case of Apoorva Vinay Nichale (supra) in Paragraph Nos. 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 certifcate 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 certifcate without calling for Vigilance Cell Report. However, if the committee fnds that the earlier caste certifcate is tainted by fraud or is granted without jurisdiction, the Committee may refuse to follow and may refuse to grant certifcate to the applicant before it.

9.

In the present case, we fnd that the committee has disbelieved the petitioner's case that she belongs to Kanjar Bhat after calling the school leaving certifcate 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 2010 (6) Mh.L.J. 401 (2008) 9 SCC 54 (2012) 1 SCC 113

4 940.9185.19 wp.doc 132(3) of Mumbai Primary Education Act. In fact, the caste has been changed on the basis of the affdavit. From the fndings of the committee it appears that the committee has observed that the change of caste has been done 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 fnding 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 certifcate is obtained by fraud it would not be bound to follow the earlier caste validity certifcate 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 certifcate to the Petitioner."

6.

The learned Government Pleader submits that since some interpolation is noticed in the school record of Shivshankar, Laxman and Santosh, the Committee has issued a

5 940.9185.19 wp.doc show cause notices to Shivshankar, Laxman and Santosh. We fnd that the Committee has not recorded specifc fndings as regard possibility of some interpolation. Be that as it may, we have noticed that Shivshankar, Laxman and Santosh have already been granted caste validity certifcates. Thus in our considered view, the reason assigned by the 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). 7.

In the circumstances, in the light of the law laid down by the judgments in Apoorva Nichale, Anand and Raju Ramsing Vasave (supra), the petitioner is entitled to be granted caste validity certifcate forthwith. However, the issuance of the certifcate shall be subject to the outcome of the show cause notices which have been issued against Shivshankar, Laxman and Santosh by the Committee as the caste validity certifcates issued to Shivshankar, Laxman and Santosh found to be based on interpolation / adverse entries.

8.

In view of above, the Committee is directed to issue Tribe validity certifcate to the petitioner forthwith. As, the

6 940.9185.19 wp.doc Committee has already initiated proceedings for cancellation of validity issued to the blood relations of the petitioner, but in response to the Courts query, it is assured by the Committee that the Committee will conclude those proceedings within a period of six months from the date of receipt of copy of this order. If the proceedings for cancellation of caste validity are answered against such certifcate holders, it shall be open for the respondent Committee to issue show cause notice to the petitioner as to why the validity certifcate granted to her should not be cancelled and it will be open for the Committee to take those proceedings to its logical end. Needless to say that the certifcate issued to the petitioner is subject to the outcome of the proceedings for cancellation of validity issued in favour of her blood relations.

9.

With the aforesaid observation, the petition is allowed to the extent indicated above.

(G.S.KULKARNI, J.) (NITIN W.SAMBRE, J.)