Bombay High Court
Vijay Yosef Hira Dive vs The State Of Maharashtra And Others on 10 June, 2016
Author: R. M. Borde
Bench: R. M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1403 OF 2016
Vijay s/o Yosef/Hira Dive ... Petitioner
Age 42 years, Occu: Service,
R/o Wander, Post: Kangar
Taluka Rahuri Dist. Ahmednagar
VERSUS
1. The State of Maharashtra
Through Government Pleader
High Court, Bench at
Aurangabad.
2.
The Zilla Parishad, Ahmednagar
District Ahmednagar, Through
its Chief Executive Officer
3. The Caste Scrutiny Committee ... Respondents.
No.1,
Nashik Division, Nashik.
Advocate for Petitioner : Mr. Dattatraya R.Jaybhar
AGP for Respondents 1 & 3 State: Mr. P. S. Patil
CORAM : R. M. BORDE &
K. L. WADANE, JJ.
DATE : 10th June, 2016
ORAL JUDGMENT (Per Borde, J.):
1. Heard the learned counsel for the parties.
2. Rule. Rule made returnable forthwith and the petition is heard for final disposal by the consent of learned counsel for the respective parties.
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3. The petitioner is objecting to the order passed by the scrutiny committee directing invalidation of the caste certificated issued in his favour. The petitioner claims to be belonging to Mahar caste which is included in Scheduled Caste category. Since the petitioner secured employment as Primary Teacher as against the seat earmarked for S.C. category, the caste certificate issued to him has been referred to the Scrutiny Committee for validation.
4. In order to substantiate his claim the petitioner has placed on record his school record, wherein, entry in respect of his caste is recorded as Mahar, Scheduled Caste. The entry in respect of Mahar caste has been recorded in the school record of his cousin brothers. Grandfather of the petitioner has been referred as Rangu Aba Mahar in the revenue record, prepared in 1946. It has not been reported that there is any doubt as regards authenticity or correctness of the documents. The petitioner has performed marriage with a girl belonging to Mahar community and the marriage is performed as per the Hindu rites.
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5. The Scrutiny Committee has directed invalidation of the claim mainly for the reason that the name of father of the petitioner is Yosef and the last rites of his father and mother were performed in accordance with Christan religious practice. The Scrutiny Committee has drawn an inference that the father of the petitioner has embraced Christian religion. The finding recorded by the scrutiny committee prima facie appears to be erroneous for the reason that there is absolutely no evidence to support the conclusion that the father of the petitioner was converted to Christianity. There is no evidence in respect of performance of ceremonies or the rituals of the conversion of the father of the petitioner to Christian faith. There is also no evidence either documentary or circumstantial to arrive at the conclusion that father of the petitioner has embraced Christian religion. Merely because witnesses have stated that father and mother of the petitioner were buried after their demise in accordance with Christian religious practice, that does not lead to an inference that there is actual conversion of the father of the petitioner to Christianity. Apart from this, the petitioner has 3/8 ::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 04:56:48 ::: 939wp1403-16.odt produced sufficient evidence to record conclusion that he continues to profess Hindu religion and is adopting Hindu religious practice. Since the petitioner has married with a girl belonging to Mahar caste, it must be concluded that the petitioner has been accepted by the community as a person belonging to Hindu religion/Mahar caste.
6. As has been held by the Apex Court in the matter of matter of Chaturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and others, reported in AIR 1954 SC 236.
there are three factors which have to be considered:
(i) the reactions of the old body; (ii) the intentions of the individual himself; and (iii) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or excommunicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body, views of the new faith hardly matter.
7. In the instant case, the old body i.e. Hindu has 4/8 ::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 04:56:48 ::: 939wp1403-16.odt adopted the petitioner in its own fold and there is nothing to infer that he has been outcaste or has been excommunicated. The petitioner himself has expressly and by his conduct shown desire and intention to retain his old social ties with Hinduism. He claims himself to be belonging to Hindu religion, Mahar caste. Mahar community has accepted him as member of the old order/caste. In these circumstances, as has been laid down by the Supreme Court in the judgment referred above, the alleged conversion of father the petitioner to Christianity is merely nominal and for all practical purposes, the petitioner retained Hindu faith. It also must be considered that disadvantages which are peculiar to Scheduled Caste, which is sadly a feature of Hindu Religion, continue and the petitioner faces such disadvantages and difficulties faced by the lower castes from amongst Hindus.
8. The Supreme Court, in the case of S. Anbalagan Vs. B. Devrajan, reported in 1984 2 SCC 112, held that ordinarily a person who had earlier embraced another religion regains his caste, unless the community does not accept him. For reconversion to Hinduism, no particular ceremony or rites are required to be 5/8 ::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 04:56:48 ::: 939wp1403-16.odt performed, unless the practice of that particular caste makes it necessary. If the convert becomes Hindu, he will revert to his original order. This appears to be particularly so in case of members of Scheduled Caste, who embrace other religions in their quest for liberation, but returned to old order on finding that their disabilities have clung them with great tenacity.
9. In the matter of K. P. Manu, Chairmanm Scrutiny committee for Verification of Community Certificate, reported in AIR 2015 SUPREME COURT 1402, the Supreme Court, in paragraph 34 of the judgment, has observed the three things that need to be established by a person who claims to be a beneficiary of a caste certificate, that-(i) There must be absolutely clearcut proof that he belongs to the caste that has been recognized by the Constitution (Scheduled Caste) Order 1950; (ii) There has been reconversion to original religion to which the parents and earlier generations had belong; and (iii) There has to be a evidence establishing acceptance by the community. If a person who is born to Christian parents who had converted to Christianity from the Scheduled Caste can avail the benefit of the caste certificate after his 6/8 ::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 04:56:48 ::: 939wp1403-16.odt embracing Hinduism subject to other qualifications, there cannot be any soundness of logic that he cannot avail the similar benefit because his grandparents were converted and he was born to the parents who were Christians.
10. In the matter at hand, there is no evidence that the parents of the petitioner have embraced Christian religion. Even if assuming that there is conversion, it is nominal and not real. Even otherwise, the petitioner has retained old order, has embraced Hindu faith and there is an evidence to demonstrate that he has been accepted by the community as member of Mahar caste.
11. The scrutiny committee has overlooked the basic principle while declining to grant validation certificate in favour of the petitioner. The order of the Scrutiny Committee invalidating the caste certificate issued to the petitioner is erroneous and deserves to be quashed and set aside and the same is accordingly quashed and set aside.
12. The Scrutiny Committee is directed to issue caste validity certificate to the the petitioner to 7/8 ::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 04:56:48 ::: 939wp1403-16.odt the effect that the petitioner belongs to 'Mahar' Schedule Caste in prescribed prescribed proforma as early as possible and preferably within a period of four weeks from today.
13. Rule is made absolute accordingly.
14. There shall be no order as to costs.
(K. L. WADANE, J.) (R. M. BORDE, J. )
JPC
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