Bombay High Court
Kum. Ankita Anup Rathor vs The State Of Maharashtra on 14 August, 2008
Author: F.I.Rebello
Bench: F.I.Rebello, B.R.Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4809 OF 2008
Kum. Ankita Anup Rathor
Age: 19 Yrs., occu;Student,
R/o Near New Bridge,
Old Mondha, Nanded. .. PETITIONER
VERSUS
1) The State of Maharashtra
Through it's Secretary,
Tribal Development Deptt.,
Mantralaya, Mumbai.
2) The Scheduled Tribe Caste
Certificate Scrutiny Committee
Through it's Member Secretary
Kashmira Bhawan,
Near Employment Exchange,
Aurangbad.
3) District Supply Officer,
Nanded Division, Nanded.
4) The Collector, Nanded.
5) The Sub Divisional Officer,
Nanded District Nanded.
6) The Director,
Higher and Technical Education,
Maharashtra State, 3,
Mahapalika Marg, Post Box No.
1967, Mumbai. .. RESPONDENTS
.....
Shri A.S.Bayas, Advocate for Petitioner;
Shri S.D.Kaldate, A.G.P. for Respondent-State.
Shri M.S.Deshmukh, Advocate for Resp.No.2.
.....
CORAM: F.I.REBELLO &
B.R.GAVAI,JJ.
Date : 14th AUGUST, 2008.
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JUDGMENT (PER: F.I.REBELLO,J.):
. Rule. Heard forthwith.
2) The petitioner in the year 2005 made an application
to the Respondent No.3 - Committee requesting to issue
Caste Certificate as belonging to "Thakur", Scheduled
Tribe. According to the petitioner, Respondent No.3,
without any reason refused to accept the application of
the petitioner. The petitioner then filed a petition
before this Court being Writ Petition No. 2239 of 2006
seeking directions
ig to the Respondent no.3-Committee to
accept the application of the petitioner for issuance of a caste certificate. By order dated 23.03.2006, this Court directed the Respondent No.3 to accept the application of the petitioner and dispose it of with appropriate decision within a period of two months.
3) The respondent no.3 refused to issue caste certificate to the petitioner. Being aggrieved, the petitioner preferred an appeal before the Respondent No.2.
The petitioner had relied on the Caste Validity Certificate issued in favour of her uncle. The Respondent No.2 dismissed the appeal preferred by the petitioner.
The petitioner being aggrieved by the dismissal of the appeal, preferred a writ petition being Writ Petition No. ::: Downloaded on - 09/06/2013 13:42:04 :::
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2707 of 2007, which petition came to be allowed by order dated 24.07.2007 and the matter was remanded back to the Respondent No.3-Committee.
4) On remand, the Respondent no.3, without issuing any reason, rejected the application for issuance of caste certificate, against which, the petitioner preferred an appeal before the Respondent No.2. The appeal was pending before the Respondent no.2 for some time and as there was no decision, the petitioner preferred Writ Petition No. 3884 of 2008 and requested for issuance of direction to the Respondent no.2 to decide the appeal as expeditiously as possible. This Court by order dated 27.06.2008 directed the respondent no.2 to decide the appeal of the petitioner within three weeks from 3.7.2008. By order dated 17th July, 2008, the appeal filed by the petitioner was dismissed, against which, the present petition is filed by the petitioner.
5) The petitioner has impugned the said decision of the Respondent No.2-Committee on the ground that the order discloses total non-application of mind, firstly inasmuch as in an appeal for issuance of caste certificate, the Respondent No.2 proceeded as if it was considering the Caste Validity Certificate. This approach, it is submitted, was without jurisdiction.
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6) It is next submitted that though in the petitioner's School Admission Register, the caste is mentioned as Rajput Bhamta, the petitioner had produced Caste Validity Certificates in respect of her relatives by the orders dated 21.03.2003 and 30.08.2002. Apart from that, it is mentioned that a copy of the lease deed in the name of petitioner's grand father in Modi's script shows caste as "Thakur". It is submitted that there was sufficient material for the petitioner to obtain a caste certificate. It is also submitted that in case of other relatives, the caste was shown as "Thakur"
7) Reply has been filed on behalf of the Respondent No.2-Committee by Indrajit Pandurang Kamble, Member/Research Officer. In the said affidavit, reliance is placed on the affidavit filed by Gyanprakash Shamlal Rathor along with genealogy and Certificate of Validity issued in favour of his son dated 30th August, 2002. It is pointed out that the statement dated 20.11.2001 before the Committee in the course of considering his application for verification, he has stated that he does not have any uncle etc. Considering that, present affidavit which is filed, where he has stated that the petitioner is real niece, cannot be considered. It was further submitted that the affidavit of Gyanprakash as also of Nitin ::: Downloaded on - 09/06/2013 13:42:05 :::
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Gyanprakash Rathor were not before the Committee.
Reliance is then placed upon a judgment of this Court, wherein it was observed that when a claiman submits a genealogy, at the first instance it is required that the genealogy is duly proved so that the Committee considers the documentary evidence on the basis of such genealogy.
Reference is then made to the Judgment of the Supreme Court and for the reasons stated therein it is submitted that the case of the petitioner deserves to be dismissed.
8) Considering the above, the question is whether the petitioner is entitled to issuance of a caste certificate when in the School record her caste was shown as Rajput Bhamta. The entry in the School Register in so far as the petitioner is concerned is of 19.06.1995. However, in so far as petitioner's father is concerned, in the School Admission Register, no caste is mentioned though in the School admission register of the petitioner's real sister, caste Thakur is shown.
9) The issue before us for consideration is whether for whatever reasons the caste in school record is wrongly shown, is it open to a person to contend that such a person is entitled to a caste certificate of what is alleged to be the correct caste/tribe when the school record is to the contra?.
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10) The purpose of obtaining a caste certificate is to enable a person to get the benefit of reservation either for admission to an educational institution or in the matter of employment. Entries in the school registers are normally made on the basis of information conveyed by the parents and recorded in the records by the school authorities. It is in these circumstances, we have to consider the issue whether such a person would be entitled to a caste certificate under the provisions of Maharashtra Scheduled Tribe, Denotified Tribe (Vimukt Jatis), Special Backward Classes and Special Backward Category (Regulation of Issuance and Verification) of Caste Certificate Act, 2000 and the Rules framed thereunder.
. Ordinarily, a caste certificate is to be issued based on the documents produced by a party before the Competent Authority. The Competent Authority, at the time of issuance of caste certificate, does not decide the issue finally, but proceeds on the prima facie material placed before it either in the form of documentary evidence or other evidence in absence of documentary evidence. It is possible that in cases, there could be situations where there is a conflict in records available.
In these circumstances, it is for the Committee to go into that aspect and consider whether on the basis of the ::: Downloaded on - 09/06/2013 13:42:05 :::
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material before it, the applicant, who has applied, is entitled to issuance of the caste certificate. We may gainfully refer to the judgment of the Supreme Court in Gayatrilaxmi B. Nagpure Vs. State of Maharashtra (1996) 3 SCC 685, where the Court observed that by wrongly denial of caste certificate to a genuine candidate, such a candidate would be deprived a privilege conferred upon such candidate by the Constitution and, therefore, utmost care must be taken before granting or rejecting any claim for issuance of caste certificate. This was in the context of a caste validity certificate, but that would all the more relevant, in so far the issue of caste certificate is concerned, as only on obtaining a caste certificate, can the certificate be verified by a competent committee which has been constituted. A burden is, therefore, cast on the Competent Authority, based on the material available, to decide whether the applicant before it is entitled to issuance of a caste/tribe certificate.
. In that context, material which was placed by the petitioner either before the Respondent no.3 or Respondent no.2 or before this Court must be considered. We proceed, on the basis that this court, in exercise of its writ jurisdiction in such matter, contesting parties have no other remedy is not hedged by the Rules of procedure and ::: Downloaded on - 09/06/2013 13:42:05 :::
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of evidence. It is also open to a civil Court to consider subsequent events and or to consider additional material which was not available at the time the decision was taken. We see no reason as to why a writ court which exercises extra ordinary jurisdiction is precluded from doing so.
11) In the instant case, firstly there are two caste validity certificates issued in favour of the petitioner's uncle as also the cousin. The petitioner has placed the genealogy on record of the petition. Similarly, Shri Nitin Gyanprakash Rathor, son of Gyanprakash Rathor, has filed an affidavit, wherein also the genealogy has been filed. What is common from this genealogy if accepted utterly is that the great grandfather of the petitioner as also of Nitin is Bhikarchand Rathor. Bhikarchand Rathor, it appears, had six sons of which Trilokchand was petitioner's grandfather and Shamlal was grandfather of Nitin Gyanprakash. Father of Nitin and the son of Shamlal have caste validity certificates in their favour. In our opinion, therefore, considering this documentary evidence, irrespective of the fact that the School record of the petitioner, she was described as Rajput Bhamta, there was sufficient material for issuance of the caste certificate.
As we have noted earlier that denial of a caste certificate has civil consequences on an applicant. As ::: Downloaded on - 09/06/2013 13:42:05 :::
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such the applicant would be denied, if in fact the petitioner belongs to a particular caste or tribe from getting the benefit of constitutional protection. This Court cannot forget that in so far as caste/tribes are concerned, the status can no longer be agitated before the civil court after the Judgement of the Supreme Court in Madhuri Patil's case followed by the Maharashtra Act. The Courts, therefore, have to bear these aspects in mind and not to deny to a otherwise eligible candidate a caste certificate. Issuance of a caste certificate is only the first step for admission to an institution or employment against reserved ig categories. That is always subject to verification by the Caste Scrutiny Committee. We hasten to add that where there is conflicting record, the decision in that matter would be based on the facts of that case.
12) In the instant case, considering the strong prima facie evidence in favour of the petitioner the petition will have to be allowed . Further considering that the petitioner is entitled to a caste certificate the petitioner should not be denied the opportunity of provisional admission. Considering the above and for the aforesaid reasons, we set aside the impugned order and direct the Respondent no.5 to issue caste certificate and that certificate will be subject to verification if the ::: Downloaded on - 09/06/2013 13:42:05 :::
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petitioner obtains admission against a reserved seat. We further direct Respondent No.6 to consider the claim of the petitioner.
13) We make it clear that the admission sought by the petitioner would be subject to the final orders to be passed by the relevant Committee and petitioner will claim no equities, if caste certificate is ultimately invalidated. Considering that, we have directed issuance of caste certificate, the petitioner to obtain caste certificate and produce the same before the Respondent no.2, within one month from today. The Committee thereafter to decide the claim as if the certificate was forwarded by the institution where the petitioner would be finally admitted.
14) Rule made absolute accordingly with no order as to costs.
(B.R.GAVAI,J.) (F.I.REBELLO,J.)
bdv/uniplex/wp4809.08
Authenticated copy
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(BD VADNERE,PA)
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