Ku.Pooja Shyamsundar Vasurkar. v. The State Of Maharashtra And ORS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10377 OF 2017 Ku. Pooja Shyamsundar Vasurkar ...

Petitioner vs.

The State of Maharashtra and Anr.

...

Respondents Mr. S.R. Barlinge a/w Mr. I.A. Patil, for the Petitioner. Mr. A.A. Kumbhakoni, Advocate General a/w. Mr. Akshay Shinde, Special Counsel a/w Mr. Sandeep Babar, AGP, for the RespondentState. CORAM : SHANTANU KEMKAR & G.S. KULKARNI, JJ.

DATE :

OCTOBER 04, 2017 P.C.:

.

Parties through their counsel.

Through this Petition filed under Article 226 of the Constitution of India, the Petitioner has assailed the order dated 2nd September, 2017 passed by the Scheduled Tribe Certificate Scrutiny Committee (Respondent No.2) whereby the Petitioner's

2/5 claim for caste validation of his caste as of "Koli Mahadev" has been rejected.

The grievance of the petitioner is that though she had submitted Caste Validity Certificate granted in favour of her father 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.

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

3/5 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.

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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.

4/5 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." We find that inspite of therebeing five validity certificates in favour of the petitioner, viz. father, three real sisters and one real uncle, the Committee discarded the said certificates observing that in some of the documents collected during vigilance enquiry, there was mention of only Koli, M. Koli and not 'Mahadev Koli'. Learned counsel for the petitioner submits inspite of those documents being available at the time when the aforesaid relatives were granted the validation certificates after due vigilance enquiry.

5/5 petitioner's claim on the basis of the said documents. 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 Nichale (supra).

In the circumstances, we allow the Petition and set aside the impugned order. As a result, the Respondent No. 2 - Committee is directed to issue the caste validity certificate to the Petitioner forthwith on receipt of authenticated copy of this order. The Petition stands disposed of as such.

(G.S. KULKARNI, J.) (SHANTANU KEMKAR, J.)