Bombay High Court
Smt. Ranjana W/O Babasaheb Sature @ Smt. ... vs The State Of Maharashtra And Ors. on 28 November, 2002
Equivalent citations: (2004)106BOMLR47
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, N.H. Patil
JUDGMENT B.H. Marlapalle, J.
1. We have heard the arguments of the learned Counsel for the respective parties spread over two continuous days and perused the record from the Scrutiny Committee as well as the registers maintained by Saint Joseph Church at Borsar. We have proceeded with the hearing of the petition so as to decide it at the admission stage itself, more so when the original complainant i.e. respondent No. 7 has filed an affidavit-in-reply. Thus, the writ petition was ready in all respect for decision at the time of admission itself.
2. Rule.
3. The learned Counsel for the respondents waive service.
4. Rule is made returnable forthwith.
5. The petitioner Smt. Ranjana w/o. Babasaheb Sature was born to Namdeo and Zalabai Bagul on 29.5.1976 at village Khandala in Taluka Vaijapur District Aurangabad and on completion of her school education she joined Vinayakrao Patil Mahavidyalya at Vaijapur, in 1 lth standard on 3.7.1993. She came to be married to Shri Babasaheb Nana Sature - a resident of village Jategaon - on 22.4.1996. Shri Babasaheb Sature himself is also a graduate in Arts and the petitioner could not complete her graduation.
In January, 2002 the elections to the Zilla Parishad, Aurangabad, were announced by the State Election Commission and in the said election the Constituency by name " 10-Mahalgaon Circle" was reserved for a Scheduled Caste citizen. The petitioner approached the Sub-Divisional Officer, Vaijapur and obtained a Caste Certificate on 31.1.2002 to the effect that she belonged to "Mahar" caste which is listed in the Scheduled Castes in the Constitution (Scheduled Castes) Order, 1950 for the State of Maharashtra. On the basis of this Caste Certificate she submitted her nomination form on the very next date i.e. on 1.2.2002 as a candidate of Shiv Sena Party against a reserved seat from "10-Mahalgaon Circle" constituency. The polling took place on 17.2.2002 and the petitioner was declared elected on 18.2.2002.
6. One Smt. Kavita Anna Bagul, who was one of the defeated candidates lodged a complaint in writing to the District Collector, Aurangabad, on 2/5th March, 2002, stating therein that the petitioner was born in a Christian family and she professed Christianity and therefore, she was disqualified to contest the elections against a seat reserved for the Scheduled Castes. Similar complaint was also filed by Shri Ramesh Khandagale, General Secretary of Republican Party of India, on or about 14th March, 2002. Election Petition No. 14 of 2002 came to be filed in the Civil Court by Smt. Bagul, challenging the petitioner's election.
7. The Collector, Aurangabad, by taking cognizance of these complaints, referred the petitioner's Caste Certificate on 28.3.2002 for validation to the Scrutiny Committee (Respondent No. 6).
8. In response to the notices issued by respondent No. 6, the petitioner as well as the complainant appeared before it on the dates given and during hearing they were represented by the Advocates. The vigilance inquiry was conducted, vigilance report was submitted to the Committee, a copy of which was made available to the petitioner and she filed her defence statement on or about 19.8.2002. Affidavits of some additional witnesses whose list was furnished by the complainant were also recorded before the Committee on 30.8.2002 in the presence of the petitioner as well as her Advocate. Finally, by the impugned decision dated 25.10/18.11.2002 the Scrutiny Committee held that :
(a) though the petitioner was born in the erstwhile Mahar caste, her family professed Christianity.
(b) the petitioner was born to Christian parents and was baptized on 27.10.1977 at Saint Joseph Church at Borsar in Vaijapur taluka.
(c) she was married in Christian family.
(d) her contentions that she had embraced Buddhism on 23.8.1988 could not be established and
(e) her claim that she belongs to "Mahar" caste (Scheduled Caste) could not be upheld.
This view of the Committee was a majority view (2:1) and the third Member namely; Chairman of the Scrutiny Committee did not give any reasoning in support of his findings invalidating the petitioner's caste claim.
9. Before we deal with the rival contentions advanced by the learned Counsel for the respective parties, it would be apposite to set-out in brief the social fabric in Rural Maharashtra as it prevailed prior to the Independence era and to some extent it prevails even as at present :
Balutedari has been an integral part of village service in Maharashtra and the term "Balutedar" means servant. Balutedari has been a support service to the main activities of farming as well as business/ trading and the governmental functions. In Rural Maharashtra, the village servants popularly known as "12 Balutedars" and these Balutedars are from Dalit as well as Non-Dalit groups. From amongst the Dalit Groups, the castes like Mahar, Mang, Chambhar (Cobbler), Dhor, etc. were Balutedars, whereas, in the non-Dalit groups, the Balutedars were Kumbhar (pot maker), Lohar (Black smith), Sutar (Carpenter), Nhavi (Barber) and so on and so forth.
Amongst the Dalit Balutedars, Maharas treated themselves to be superiors and mainly because of the duties that were assigned to them. The duties were of dual nature namely; the official duties (Maharki) and village duty (Gavaki).
Towards the beginning of 20th Century, the Church Missionaries had spread their network in some of the districts of Maharashtra for expanding Christianity and also to build Churches in villages. Ahmednagar, Aurangabad, Jalna, Dhule and Jalgaon are some of the prominent districts under this Bench where such activities commenced towards the beginning of 20th Century itself. It Is a matter of common knowledge that the socially backward classes either embraced Christianity or Islam during the pre-Independence era may be on account of the economical and social conditions or to come out of the clutches of Hindu religion. It is well-known that there was virtually exodus of conversion in some rural areas of Maharashtra and that was mainly to Christianity and by the Dalit groups. There were non-Dalit groups as well who had converted themselves to Christianity, the former were termed as Dalit Christians, whereas, the latter were termed as Hindu Christians.
10. Dr. Babasaheb Ambedkar was born in a Mahar family. In the "All Mumbai Regional Conference of Untouchables" held at Yeola in Nashik district on 13.10.1935, Dr. Babasaheb Ambedkar publicly announced :
Though I am born untouchable Hindu, I will not die as a Hindu.
From there onwards he continued his quest for liberation from the orthodox and draconian clutches of Hindu religion. He advocated this forcefully through his speeches as well as writings. Finally on 14.10.1956 Dr. Ambedkar alongwith thousands of his followers embraced Buddhism by renouncing Hindu religion (at Nagpur). It is common knowledge that the citizens of Maharas impliedly converted themselves to Buddhism by following Dr. Ambedkar. However, in view of the reservations provided under the Constitution and the Government of India Notification dated 30.11.1950 providing reservation in service for the Scheduled Castes, St was obvious that "caste" became a main factor and "religion" got a back-seat. Inspite of conversions either to Christianity or Buddhism, these citizens continued their caste-identity and perhaps, enjoyed the benefits of reservations.
11. Dr. J.H. Hutton. a Census Commissioner of India had systematically framed a list of depressed classes which was the basis for an Order promulgated by the British Government in India called the Government of India (Scheduled Castes) Order, 1936. This Order enumerated several castes/ races in the attached schedule and they were, by paragraph 2 of that Order, deemed to be the Scheduled Castes. Paragraph 3 of the same Order declared that Indian Christians would not be deemed to be the members of the Scheduled Castes. During the framing of the Constitution, the Constituent Assembly recognised that the Scheduled Castes were a backward section of the Hindu community who were handicapped by the practice of untouchability. The evil practice of untouchability was not recognised by any other religion and the question of any Scheduled Caste belonging to any religion other than Hindus did not, therefore, arise. The expression "Scheduled Castes" is defined in Clause (24) of Article 366 of the Constitution of India to mean "such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be the Scheduled Castes for the purposes of the Constitution." Clause (1) of Article 341 enjoins upon the President to specify by public notification the castes, races or tribes or groups within the castes/races or tribes, which, for the purposes of the Constitution, are deemed to be the Scheduled Castes in relation to a State or Union Territory. In discharge of the obligation imposed by Article 341(1) of the Constitution the President of India issued the Constitution (Scheduled Castes) Order, 1950. In its original Form, paragraph 3 thereof declared that "no person who professed religion different from Hinduism would be deemed to be a member of the Scheduled Caste". There was a proviso to paragraph 3 which declared that every member of the Ramdasi, Kabirpanthi, Mazhabi or Sikligar caste resident in Punjab or the Patiala and East Punjab States Union would in relation to that State be deemed to be a member of the Scheduled Castes whether he professed the Hindu religion or the Sikh religion. The Sikhs, however, demanded that some of their backward sections, namely; the Mazhabis, Ramdasis, Kabirpanthis and Sikligars, should be included in the list of Scheduled Castes. The demand was accepted on the basis that these sects were originally Scheduled Caste Hindus who had only recently been converted to the Sikh faith and had the same disabilities as the Hindu Scheduled Castes. The depressed classes within the fold of Hindu Society and the four classes of Sikh community were, therefore, made the subject of the original Constitution (Scheduled Castes) Order, 1950 and subsequently. in 1956 the Constitution (Scheduled Castes) Order, 1950 was amended and it was broadened to include all Sikh untouchables.
12. In the case of Punjabrao v. Dr. D.P. Meshram and Ors. the constitutional validity of Clause (3) of the Constitution (Scheduled Castes) Order, 1950, was challenged and the Constitution Bench of the Apex Court turned down the said challenge. It was held that the Hindu converted to Buddhism could not derive the benefit of the Constitution (Scheduled Castes) Order, 1950. This Court in the cases of Anandrao Tohluji v. Namdeorao Lalwanji Sontakkey and Ors., 1978 Mh. L.J. 371 and Kum. Mangala Parashram Kelkar and Anr. v. State of Maharashtra also held that the Hindu converts from any caste to Buddhism were not entitled for the benefits of reservation as available to the Scheduled Castes under the Order of 1950. It is also relevant to note at this stage that by Government Resolution dated 13.2.1978 the Government of Maharashtra expanded the list of Other Backward Classes and at serial No. 196, it added the "Scheduled Castes converted to Christians". Thus, pursuant to the said Resolution, Dalit Christians have been recognised as Other Backward Classes in the State of Maharashtra even as at present.
13. The Parliament deemed it appropriate to amend further the Constitution (Scheduled Castes) Order, 1950. Clause (3) thereof was substituted by the Act No. 15 of 1999 by the following new clause :
Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, Sikh or Buddhist shall be deemed to be a member of the Scheduled Castes.
Consequently, the persons who had converted themselves to Buddhism are held eligible for the benefit ofreservation as applicable to the Scheduled Castes from 1990 onwards while dalits converted to Christianity are recognised as Other Backward Classes in Maharashtra.
14. Now coming to the facts of this case, on the reference being made by the Collector, Aurangabad, respondent No. 6 Scrutiny Committee had issued notices to the petitioner as well as the complainant respondent No. 7. These notices were issued in the month of April, 2002 and the proceedings were held on 21.6.2002, 25.6.2002, 12.8.2002, 22.8.2002 and 30.8.2002. The statements of some of the witnesses namely : Father Andrew, Smt. Kavita Bagul (complainant), Shrl Dagdu Rabaji Shirsat and Shri Pavlas Khanduji Jagtap were recorded on 30.8.2002 and on the same day the petitioner's defence statement was also recorded, though she had submitted her reply to the show-cause notice on 17/19.8.2002.
15. The contentions of the petitioner as were set-out before the Scrutiny Committee in her reply to the show-cause notice as well as the defence statement and as have been presented through the address of her learned Counsel are :
(i) she was born in the Mahar caste and was issued the Caste Certificate accordingly.
(ii) she had embraced Buddhism on 23.8.1988 at Vaijapur at the hands of Bhadant Angalimata Shakya Putra Mahastvir.
(iii) she was married as per the Buddhist rituals to Shri Babasaheb Sature.
(iv) she professed Buddhism. She was not born to Christian parents and she never professed Christianity. The entry regarding her Baptism made in the register maintained by Saint Joseph Church at Borsar was fabricated one and she was never baptised. The statements made by the witnesses that she belongs to Christian family were got up and were made out of political rivalry and therefore, could not be relied upon.
(v) the Committee did not give her sufficient opportunity to put up her case.
(vi) the vigilance report and the statements of witnesses made before the Vigilance Officer were not considered while deciding her caste claim, This was an error on the fact of the record committed by the Scrutiny Committee.
(vii) The Baptism Register did not bear the signature of the parents and it did not. reflect her parents consent for the same.
(viii) The fact that she was elected against a seat reserved for the Scheduled Caste itself indicated a sufficient proof that she belongs to the Scheduled Caste and her status has been accepted by the community.
(ix) she was recipient of Scholarship awarded to the Scheduled Caste students while she was a student.
16. The respondent No. 7 original complainant Smt. Bagul has filed an affidavit in reply and supported the impugned decision of respondent No. 6 Scrutiny Committee. Shri E.P. Sawant, learned Government Pleader, by referring to the original record made available before us, has adopted the arguments advanced on behalf of respondent No. 7 and supported the impugned decision invalidating the caste claim of the petitioner.
17. Before the Scrutiny Committee, the petitioner had submitted the following documentary evidence in support of her claim that she belonged to the Scheduled Caste.
1. Caste Certificate dated 31.1.2002 issued by the Sub-Divisional Officer, Vaijapur.
2. School Leaving Certificate No. 1696 dated 25.6.1993 issued by the Head Master, Zilla Parishad High School, Khandala, Tq. Vaijapur.
3. 7/12 extract of Gut No. 118 Hadol Inam land issued by the Talathi, Khandala.
4. Khasra Pahani Patrak of Survey Nos. 14 and 16 of village Jategaon issued by the Tahsildar, Vaijapur.
5. Petitioner's Birth Certificate dated 11.4.2002 issued by the Sarpanch, Gram Panchayat, Khandala.
6. Dhamdiksha Certificate dated 23.8.1988 issued mi 8.4.2002 by the Secretary, Akhil Bharatiya Bhikkun Training Sangh, Bhadun I Shri Shakyaputra Mahasthavir Nalanda, Budh Vihar, Nagewadi, Jalna. showing that the petitioner was converted to Buddhism.
7. Invitation card dated 22.4.1996 in respect of marriage of (.he petitioner with Shri Babasaheb Sature.
8. Baptisma Certificate No. 2028 in respect of Baptisma of the petitioner on 27.10.1988 issued on 1.6.2002 by the Catholic Church, Borsar, Tq. Vaijapur.
9. Statement of the Head Master, Zilla Parishad Girls Primary School, Khandala, Tq. Vaijapur, recorded on 14.6.2002.
10. Extract of Admission Register bearing No. 412 dated 26.6.1979 issued by the Head Master, Zilla Parishad Kendriya Primary School, Khandala, Tq. Vaijapur.
11. Extract of Admission Register No. 701 dated 14.7.1982 issued on 11.6.1984 by the Head Master, Zilla Parishad Kendriya Primary School, Khandala, Tq. Vaijapur.
12. Transfer Certificate No. 268 issued by the Head Master, Zilla Parishad High School, Khandala.
13. Caste Certificate bearing No. 1988/MG/WAS/401 dated 22.2.1988 in respect of the petitioner's brother namely :Baban Namdeo Bagul.
14. Caste Certificate No. 90/MAG/WAS/339 dated 7.7.1990 in respect of brother of the petitioner namely : Changdeo Namdeo Bagul issued by the Tahsildar, Vaijapur.
15. Caste Certificate bearing No. 9l/MAG/WAS/dated 2.5.1995 in respect of petitioner's husband namely : Babasaheb Nana Sature.
16. Identity Card dated 23.8.1992 in respect of registration of the petitioner with the Employment Exchange and issued by the Sub-Regional Employment Exchange Officer, Aurangabad.
17. Order dated 25.6.1994 granting scholarship of the Government of India to the petitioner and issued by the Principal, Vinayakrao Patil Mahavidyalaya, Vaijapur.
18. Affidavit of Smt. Sugandhabai Dagdu Tribhuwan r/o. Kapuswadgaon, Tq. Vaijapur.
19. Caste Certificate Bearing No. 82/MISC/WS dated 12.8.1982 in respect of petitioner's relative Shri Genu Nathu Bagul issued by the Tahsildar, Vaijapur.
20. Caste Certificate bearing No. 91/MG/WAS dated 26.7.1995 in respect of the petitioner's relative Sow. Tulsabai Tukaram Bagul, issued by the Tahsildar, Vaijapur.
21. Transfer Certificate No. 35/836 dated 4.8.1980 issued by the Head Master, Zilla Parishad High School, Khandala, Tq. Vaijapur, in respect of the petitioner's relative Shri Balanath Genuji Bagul.
22. Caste Certificate bearing No. 1989/MAG/WAS/80 82 dated 24.9.1989 in respect of petitioner's relative Shri Sukhdeo Tukaram Bagul, issued by the Tahsildar, Vaijapur.
23. Caste Certificate bearing No. 91/MAG/WAS/1097 dated 14.6.1996 in respect of the petitioner's relative Smt. Dopradabai Sukhdeo Bagul. issued by the Tahsildar, Vaijapur.
24. Caste Certificate bearing No. 94/MAG/WAS/507 dated 11.3.1994 in respect of petitioner's relative Shri Nivrati Tukaram Bagul, issued by the Tahsildar, Vaijapur.
25. Transfer Certificate No. 2467 dated 31.5.1994 issued by the Principal, Vinayakrao Patil Mahavidyalaya, Vaijapur, In respect of the petitioner.
26. Caste Certificate bearing No. 91/MAG/WAS dated 2:5.3.1995, issued by the Tahsildar, Vaijapur in respect of petitioner's husband's brother Shri Sadu Nana Sature.
27. Bonafide and Character Certificate dated 21.3.1995 issued by the Head Master, New High School, Mahalgaon, Tq. Vaijapur in respect of petitioner's husband's brother Shri Sadu Nana Sature.
28. Caste Certificate bearing No, MAG/ST/WAS/1295 dated 26.7.2002 in respect of petitioner's relative Shri Kachru Sonaji Sature, issued by the Sub-Divisional Officer, Vaijapur.
In addition, the petitioner has also produced the copies of the 7/12 extracts as well as Khasra Patrak in respect of the agricultural land owned by her father in support of her claim that he being a Scheduled Caste was allotted the agricultural land by the State Government.
18. On the other hand, the complainant had submitted a list, of witnesses for being examined before the Scrutiny Committee and accordingly, on 30.8.2002 the statements of Shri Dagdu Rabaji Shirsath, Shri Pavlas Khanduji Jagtap and the complainant were recorded. In addition the statement of Shri Vinod Shekle, who was Parish Priest at Saint Joseph Church was recorded at Borsar on 1.6.2002 and again on 19.6.2002. He was issued notice to appear before the Committee on 13.6.2002. He submitted a written explanation setting-out the circumstances which forcibly kept him away from appearing before the Committee on that day. In his letter dated 13.6.2002 he had informed the Scrutiny Committee that when he was preparing to come out of the Church on 10.6.2002 to present himself before it, he was stopped by some of the Shiv Sena activists/ supporters and was not allowed to come out of the church with the record.
In addition, affidavits were filed before the Committee by the following persons claiming that the petitioner and her husband professed Christianity and continue to profess said religion.
(i) Mushtaq Chandkha Pathan r/o. Jategaon, Tq. Vaijapur (Petitioner's matrimonial village).
(ii) Sayed Nyajali Sayyed Akbar r/o. Jategaon
(iii) Machhindra s/o. Patilba Kale r/o. Jategaon.
19. Shri Vinod Shelke had also issued a true copy of the Baptism certificate of the petitioner on 1.6.2002 which is annexed to his statement recorded on the same date.
Baptism Register maintained by Saint Joseph Church at Borsar was also submitted before the Scrutiny Committee.
20. The Scrutiny Committee at the threshold accepted as a matter of fact that the petitioner was born in the former Mahar family and the certificates issued by the schools and the colleges in her favour as well in favour of her brothers, sisters and revenue documents relied on by her indicates that there was no dispute regarding her having born in the farmer Mahar family.
The main issue before the Scrutiny Commitlee was whether the petitioner came from a Christian family. The Committee assessed the evidence placed before it on this issue. The majority view of the Committee recorded a finding that the petitioner belonged to a Christian family, she was baptised on 20.7.1977 and she could not prove her conversion to Buddhism. We are, therefore, required to consider the correctness of the findings of the Committee that the petitioner belongs to Christian family and she professes Christianity.
21. As discussed a little while ago, on conversion to Christianity, it is a common practice to retain the original caste-Identity. It is well-known that there are Mahar Christians, Mang Christians and so on and so forth. This intention to retain the caste does not have a legal sanctity when it comes to Christian or Islam. However, such a retention of caste by those who have embraced Buddhism does not affect their social status as belonging to the Scheduled Castes in view of the amendment in Clause (3) to the Constitution (Scheduled Castes) Order, 1950 by the Act No. 15 of 1990 and prior to that, it did matter, inasmuch as, it was established by a catena of judgments that the Hindus converted to Bviddhism were not entitled to the benefit of reservation as available to the Scheduled Castes.
22. We have considered the statements recorded before the Committee as well as the record that was placed before it. Father Andrew in his statement disclosed that he knew the petitioner since August, 2001. Her husband was assisting him at Karuna Niketan Church, Vaijapur, from August to December, 2001 and he was not working as Dharma Pracharak. He came to know that Babasaheb Sature is Buddhist and therefore, there was no question of assigning him any role of a Dharma Pracharak. In this statement recorded on 30.8.2002, there if no whisper on the issue of the petitioner's religion that either she belonged to Buddhist religion or Christian religion.
Shri Dagadu Rabaji Shirsat stated before the Committee that the petitioner was daughter of Nanasaheb Bagul r/o. Khandala. She was known to him. The entire Mahar community in the said village was converted to Christianity prior to 1960 and so were the petitioner's parents. The petitioner's husband Babasaheb Sature was also known to him and he was working at Vaijapur Church as Dharma Pracharak. In December, 2001, Christian Conference was organised in Shirasgaon village by Shri Babasaheb Sature, Raghunath Pathare, Raibhan Tribhuvan, Kapse and others. The deponent was present in the said conference. Unless a person professed Christianity, he would not be employed in the Church, The petitioner was married as per the Christian traditions and her marriage was registered at Karuna Niketan Church, Vaijapur during the period from August to October, 2001.
The next witness Shri Pavlas Khanduji Jagtap stated before the Committee that the petitioner's first cousin was married to Vikas Khanduji Jagtap who is the son of his (the deponent's) brother. Namdeorao Bagul as well his brothers profess Christianity and the marriage of Lucas's (deponent's brother's son) was performed as Christian traditions some times in 1994-95. Himself being a Christian, he was visiting Karuna Niketan Church regularly. He also stated that the Christian community in villages of Khandala and Parsola assemble at Borsar Church in December every year and he had seen the petitioner as well as her parents in the said congregation. He had attended the petitioner's wedding which was performed as per the Christian traditions at the hands of Father Nandu Parkhe.
23. Father Vinod Shelke, Parish Priest at Borsar Church, who had submitted a written letter dated 13.6.2002 setting-out the circumstances forcing him not to appear before the Committee on 10.6.2002 came to be transferred from the said Church to the Church at Hingoli on 13.6.2002 itself. He stated before the Committee that the petitioner's baptism was performed on 27.10.1977 and the same was entered into the register. The entry in the register was verified by him. He stated that the petitioner's parents professed Christianity and so was the case with her husband who worked as Brother at Calcutta Church. He also stated that Shahir Bagul who is cousin of the petitioner was regularly visiting the Church at Vaijapur and when he came to know about the inquiry being undertaken by the Committee regarding the status of the petitioner, the deponent was threatened by Shahir Bagul, On the petitioner being elected as Member of Zilla Parishad, she paid respects to the Mother's Portrait In Borsar Church alongwith the petitioner's family members.
24. Baptism is covered under the Code of Canon Law. We, therefore, deem it appropriate to reproduce some of the relevant Canons from the said Code as follows :
Can. 851. The celebration of baptism should be properly prepared. Accordingly :
1. an adult who intends to receive baptism is to be admitted to the catechumenate and, as far as possible, brought through the various stages to sacramental initiation, in accordance with the rite of initiation as adapted by the Episcopal Conference and with the particular norms issued by it;
2. the parents of a child who is to be baptised, and those who are to undertake the office of sponsors, are to be suitably instructed on the meaning of this sacrament and the obligations attaching to it. The parish priest is to see to it either he or others duly prepare the parents, by means of pastoral advice and indeed by prayer together; a number of families might be brought together for this purpose and, where possible, each family visited.
Can. 852 (2). One who is incapable of personal responsibility is regarded as infant even in regard to baptism.
Can. 857 (1). Apart from a case of necessity the proper place for baptism is a church or an oratory.
(2) As a rule and unless a just reason suggests otherwise, an adult is to be baptised in his or her proper parish church, and an infant In the proper parish church of the parents.
Can. 867 (1). Parents are obliged to see that their infants are baptised within the first few weeks. As soon as possible after the birth, indeed even before it, they are to approach the parish priest to ask for the sacrament for their child, and to be themselves duly prepared for it.
Can. 875. Whoever administers baptism is to take care that if there is no a sponsor present, there is at least one witness who can prove that the baptism was conferred.
Can. 877(1), The parish priest of the place in which the baptism was conferred must carefully and without delay record in the register of baptism the names of the baptised, the minister, the parents the sponsors and, if there were such, the witnesses, and the place and date of baptism. He must also enter the date and place of birth.
25. The Baptism Register placed before us shows the entries right from 16.1.1965. It has columns like-serial number, date of baptism, Christian name, date of birth or age, father's Christian name, mother's Christian name, surname, residence, parents profession, nationality, place of baptism, officiating priest, notice of confirmation with date and place of notice of subsequent marriage with 'NN' and of place. It is noticed that the last, two columns i.e. notice regarding confirmation and subsequent marriage are blank except in few cases which are not even ten in number. There is no column for parents signature. Equally well, there is no column setting-out any of the parents consent. At serial No. 2028 (on 27.10.1977) the petitioner's name appears "Luiza Ranjana". Her age was shown as one year. Both the names of her parents with their surnames have been shown and the place of residence has been shown as Khandala. The profession of the parents has been shown as Labour with Indian nationality. It also gives the sponsorer's name and the signature of the officiating priest (T. Kuttian). It is evident from the register that on 27.10.1977 in all five children from Khandala village including the petitioner, were baptised and the eldest amongst them was of five years and the youngest was of three months. The entry at serial No. 2028 does not raise any doubt about interpolation, overwriting or of subsequent entry in the register. The said entry regarding the petitioner's baptism is evidently in the normal course of baptism and therefore, the petitioner's allegations that the said entry was unreliable or fabricated or subsequently incorporated, are baseless. The dictates of Canon Law as reproduced hereinabove have been complied with by maintaining the baptism register and the petitioner's baptism entry cannot be doubted or vitiated on any count. The signature or consent of the parents is not a requirement in law for valid baptism. Baptism Certificate issued on 1.6.2002 by Father Vinod Shelke is based on the Baptism register maintained by the Church and it cannot be labelled as a got-up document. Canon Law also indicates that the parents are required to be Christians when an infant is baptised. It is only in the case of an adult that Baptism could be administered in the absence of his or her parents and as per his or her wish. Reading the Baptism register and the entry thereof in respect of the petitioner on 27.10.1977, with the provisions of Canon Law as reproduced hereinabove, we have no doubt in our mind that the petitioner's parents professed Christianity when the petitioner was baptised at the age of one year and she was born to Christian parents. It is obvious that the petitioner's parents continue with their caste identity namely "Mahar caste" but that by itself would not be sufficient to hold that the petitioner did not profess Christianity and she was all along a "Mahar Hindu/ Buddhist".
26. In the case of Soosai v. Union of India and Ors. the main question considered by the Apex Court was whether a Hindu belonging to the Scheduled Caste retains his caste on conversion to Christianity. While holding in the negative, the Apex Court observed thus :
It must be remembered that the declaration incorporated in paragraph 3 deeming them to be members of the Scheduled Castes was a declaration made for the purposes of the Constitution. It was a declaration enjoined by Clause (1) of Article 341 of the Constitution. To establish that paragraph 3 of the Constitution (Scheduled Castes) Order, 1950, discriminates against Christian members of the enumerated castes it. must be shown that they suffer from a comparable depth of social and economic disabilities and cultural and educational backwardness and similar levels of degradation within the Christian community necessitating intervention by the State under the provisions of the Constitution, It is not sufficient to show that the same caste continues after conversion. It is necessary to establish further that the disabilities and handicaps suffered from such caste membership in the social order of its origin-Hinduism - continue in their oppressive severity in the new environment of a different religious community.
30. The Constitution Bench of the Apex Court in the case of the Principal, Guntur Medical College, Guntur and Ors. v. Y. Mohan Rao. inter alia, held :
Now there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity he loses his membership of the caste. Ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that it is not an invariable rule. It would depend on the structure of the caste and its rules and regulations. There are some castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians. Even if a person does not. lose the membership of his caste, on reconversion to Hinduism he can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member.
In this case, the Supreme Court had referred to its earlier decision in C.M. Arumugam v. S. Rajgopal, of the said decision it has been held as under :
Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a Scheduled Caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism. A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion.
In the case of Kailash Sonkar v. Smt. Maya Devi a three-Judges Bench of the Apex Court: considered the issue of social status of a person on conversion to Christianity and after referring to its various earlier decisions, if concluded as under :
26. It is true that a caste to which a Hindu belongs is essentially determined by birth and if a Hindu is converted to Christianity or any other religion which does not recognised caste, the conversion amounts to a loss of the said caste.
27. The question that arises for consideration is-whether the loss of the caste is absolute irrevocable so as not to revive under any circumstance? In considering this question the Courts have gone into the history of the caste system and have formulated the following guiding principles to determine this question :-
(a) Where a person belonging to a Scheduled Caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retain their caste or family laws and despite the new Order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion, however, does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In a large area of South and some of the North-Eastern States it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new Order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted to a new one, there is no loss of caste. Moreover, it is a common feature of many converts to a new religion to believe or have faith in the Saints belonging to other religions. For instance, a number of Hindus have faith in the Muslim Saints, Dargahs, Imambadas which becomes part of their lives and some Hindus even adopt Muslim names after the Saints but this does not mean that they have discarded their old Order and not themselves converted to Islam.
(b) In all other eases, conversion to Christianity or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion.
28. The other important question which is to be answered and which is really the controversy in the present case is : if after a person is converted to a new religion - in the instant case, Christianity-does his caste revive if he is reconverted to his old religion and, if so under what circumstances? As indicated above, starting from the Privy Council to the present-day, authorities of the High Courts and this Court have laid down certain norms and conditions under which a caste could revive. These conditions are as follows :
(1) where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefits or gain.
(2) where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and (3) Rules of the new Order in permitting the convertee to join the new caste.
29. Unless the aforesaid conditions are fulfilled the loss of caste on conversion is complete and cannot be revived. In our opinion, having regard to the present set-up and the circumstances prevailing in our modern society it will be difficult to insist on the second condition, viz.; the insistence on the members of the community of the caste to admit the convertee on reconversion to the original faith because such a course of action may lead to dangerous consequences and ill-conceived exploitation. The curse and cancer of untouchability despite thirty years of social reforms still persist and no quarter should be given to further persecution of the members of the Scheduled Castes who, as we often find, are subjected to all kinds of indignities, insults and are looked down upon as slaves or vassals, meant merely to serve the members of the higher caste. In the case of Ganpat v. Returning Officer this Court speaking through Alagiriswami, J. highlighted this particular aspect in the following words (at p. 424 of AIR):-
The monstrous curse of untouchability has got to be eradicated. It has got to be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are untouchable should assert their self-respect and fight for their digrnity that members of the other communities should forget about it.
30. In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose, whereas, the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which caste the caste would revive on the reconversion of the person to his old religion.
33. In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives.
27. It appears that the petitioner was aware of the legal position, namely; on reconversion to Buddhism or Hinduism she can enter into the fold of Scheduled Castes and she took the plea regarding her reconversion to Buddhism. In support of this defence, she relied on the certificate purportedly issued by Bhadant. This Dhamma Dhiksha Certificate is purportedly dated 23.8.1988 and surprisingly it has been signed on 8.4.2002 by the said Bhadant. The Committee had issued a notice calling upon the said person to appear before it. Inspite of receipt of the notice, the said Bhadant did not appear before the Committee on 30.8.2002. The certificate submitted by the petitioner thus remained to be proved.
The petitioner then relied on her wedding invitation card but she failed to examine any witness in support of the same. A printed card by itself cannot be a proof in support of the petitioner's contention that she was married as per Buddhist traditions. It was necessary for her to examine the printer or any of her elders in the family or the addressee of the invitation card. Under these circumstances, the Committee held and rightly so that the petitioner's claim regarding re-conversion to Buddhism could not be established. It is held by the Apex Court in a catena of decisions that a claimant of social status must stand on his/her legs and prove such a claim by bringing on record the documents/ evidence which have probative value.
Notwithstanding the failure of the petitioner in this regard, we are of the view that the defence taken by the petitioner regarding re-conversion to Buddhism cannot be accepted on some other grounds as well. As on 23.8.1988 the petitioner was 13 years of age and thus, a minor. The reconversion to Buddhism on her own while she was minor is certainly doubtful. She sought admission to Vinayakrao Patil Mahavidyalaya, Vaijapur, on 3.7.1993 and in the column of caste she stated "Hindu-Mahar". She left the Junior College on 31.5.1994. She was issued the leaving certificate on 14.6.1994. This certificate shows the petitioner's caste as "Hindu-Mahar". If the petitioner had re-converted to Buddhism way back in August, 1988, there was no reason for her to show her caste as "Hindu-Mahar" on 3.7.1993 when she took admission in the college at Vaijapur. Thus, the petitioner took a defence of reconversion but failed to prove the same before the Scrutiny Committee and some of the documents submitted by her contradicted her claim of conversion to Buddhism.
28. Three residents of village Jategaon referred to hereinabove and who had submitted their affidavits before the Committee could have been cross-examined by the petitioner or the petitioner could have submitted an application before the Committee to summon them for recording their statements on oath under the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificates Act, 2000. ("Caste Verification Act," for short). The petitioner did not do so. These statements made on oath by way of affidavits clearly indicated that the petitioner and her husband are Christians and they profess Christianity even as at present.
29. In this petition filed under Articles 226 and 227 of the Constitution, the decision of the Committee had been brought in question and our powers to scrutinise the same are very well-defined by a number of decisions of the Supreme Court. We refer only to two of them.
In the case of Syed Yakoob v. K.S. Radhakrishnan and Ors. the majority view (4:1) laid down the limits of jurisdiction of the High Court, in issuing writ of certiorari under Article 226 of the Constitution of India in the following words :
7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent of the face of record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised vide Hari Vishnu Kamath v. Syed Ahmed Ishaque, ; Nagendra Nath v. Commr. of Hills Division, and Kaushalya Devi v. Bachittar Singh .
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the fact of record means. What cart, be corrected by a writ has to be an error of law: but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or maybe, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible or desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.
More recently in the case of State of Maharashtra v. Milind and Ors. AIR 2001 SC 393 the Constitution Bench of the Apex Court, on the powers of High Court to issue writ of certiorari, observed thus :-
The power of the High Court under Article 227 of the Constitution of India while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal only when it records a finding that the inferior tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record. The jurisdiction of the High Court would be must more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution.
30. Keeping these parameters in my mind, we have considered the majority view of the Committee, the material on record, the provisions of Canon Law and the arguments advanced by the learned Counsel for the respective parties before us. The conclusions arrived at by the Committee are based on the documentary evidence and the statements of persons who were summoned before it by invoking the provisions of Section 9 of the Caste Verification Act. The petitioner was present before the Committee alongwith her Advocate when these statements were recorded. The majority view of the Committee is supported by the reasoning it has given. We are satisfied that there is no error apparent on the face of the record in arriving at the conclusions so recorded. There is no case made-out that either admissible evidence has not been considered or has not been properly considered or inadmissible evidence has been taken into consideration. Shri S.B. Talekar, learned Counsel for the petitioner, in his address before us, argued that the statements of the persons who appeared before the Vigilance Officer were not considered by the Committee, We must remind that these are not the persons who were called by the Committee by invoking the powers under Section 9 of the Caste Verification Act for recording statements and the report submitted by the Vigilance Officer to the Committee did consider the statements of the persons who appeared before him. The vigilance report has set-out the factum of petitioner being baptised at Saint Joseph Church at Borsar but noted that the parents had not signed the same. We have examined the register of Baptism maintained by the said Church which does not contain such column and such is not the requirement under the Canon Law.
31. Shri S.B. Talekar, learned Advocate for the petitioner, then Invited our attention to a Division Bench judgment of this Court in the case of Ayub Khan s/o. Sardar Khan v. State of Maharashtra and Ors., Writ Petition No. 1737 of 2002 and submitted before us that the issue of constitutional validity of the Caste Verification Act has been referred to a Larger Bench by disagreeing with the view taken by us (B.H. Marlapalle and N.H. Patil, JJ.) in the case of Balasaheb Thorat v. State of Maharashtra, Writ Petition No. 5345 of 2001. The said decision in Balasaheb's case was challenged in Special Leave to Appeal (Civil) No. 9729 of 2002 which came to be dismissed on 15.11.2002, We are, therefore, bound by the view taken by us regarding the constitutional validity of the said Act. The petition thus fails on all counts. No reference as yet has been made by the Honourable The Chief Justice, to a Larger Bench.
32. Two more issues raised by the learned Counsel for the petitioner namely : (a) that the Committee does not have powers to adjudicate upon the claim of religion and its adjudlcatory powers are restricted only to the caste claims and (b) In the absence of Rules under the Verification Act, the Committee cannot continue with the verification proceedings and more so in view of the decision of this Court in Writ Petition No. 1373 of 2002, are also required to be dealt with.
So far as the first issue is concerned it is required to be noted that the petitioner was issued a Caste Certificate on 31.1.2002 stating that she belongs to "Mahar" caste which Is listed in the list of Scheduled Castes under the Presidential Order of 1950 applicable to the State of Maharashtra. Clause (3) of the said Order states that no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of Scheduled Castes. It was under these circumstances the Committee was required to consider whether the petitioner professed Hinduism, Buddhism or Sikhism. Thus, in the case of Scheduled Caste candidates when the certificate is referred for verification, the Committee is competent to examine whether such a candidate belongs to any of these three religions and if the Committee answers in the negative on this issue, the Caste Certificate under verification shall have to be cancelled. In such cases, the validation is not in respect of religion per se but the proceedings are aimed at ascertaining whether the Caste Certificate falls within the ambit of Clause (3) of the Presidential Order of 1950 or not. The Government of Maharashtra has declared the Scheduled Castes converted to Christianity as OBC vide its resolution dated 13.2.1978 arid if the Caste Certificate issued to any such OBC candidates is referred for verification to the Committee, it is required to examine whether such a claimant has been converted to Christianity from the Scheduled Castes and such an adjudication cannot be termed as an adjudication verifying the claim of religion. This analogy applies with equal force to the case at hand.
On the second issue we refer to our judgment in Writ Petition No. 5345/ 2001 wherein similar point was raised and was turned down by us. Subsequently, the Government of Maharashtra issued a Government Resolution dated 29th June, 2002 and designated the Committees constituted for verification of castes/tribes claim pursuant to the decision of the Supreme Court in the case of Kum. Madhuri Patil AIR 1995 SC 94 as the Committees under the Verification Act of 2001 by invoking its powers under Section 19 of the said Act. Our decision in Writ Petition No. 5345 of 2001 was challenged in Special Leave to Appeal (Civil) No. 9729 of 2002 which came to be dismissed on 15.11.2002.
Regarding the issue of the petitioner's receiving scholarship as Scheduled Caste candidate, it appears that the same benefit was received by her while she was studying in the Junior College (Vinayakrao Patil Mahavidyalaya) and this was available to her solely because she had shown her caste as a "Hindu Mahar" and therefore, such receipt of scholarship cannot be accepted as probative evidence in support of her claim that she was neither born in a Christian family nor she professed Christianity at any time.
33. In the result, the writ petition is dismissed. Rule is discharged with no order as to costs.
34. Shri A.D. Pawar, learned Advocate holding for Shri S.B. Talekar, learned Advocate for the petitioner, submitted an oral application and prayed for suspension of this order for a period of 15 days. We have considered the same and the request made by the petitioner cannot be considered more so when the provisions of Section 16 of the Maharashtra Zilla Parishads Act, 1961, have already operated consequent to the order passed by the Scrutiny Committee as stated across the Bar by the learned Advocate appearing for the Zilla Parishad, Aurangabad.
35. CA for intervention does not survive and is disposed of, as such.