1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No.3949 of 2005 [Rajesh Haridas Marshettiwar Vs. State of Mah. & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. N.C. Phadnis, Adv., for the petitioner. Mr. N.W. Sambre, Adv., for respondent no.2. Mr. S.S. Doifode, AGP for respondent nos. 1,3 and 4. ------ CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATE : 25th August, 2009. 1. Heard finally. 2. Adv. Mr. Phadnis points out that petitioner produced old document dated 7th August, 1924 of his great grand-father, which revealed caste Chhatri . He states that said document has not been accepted because of 1947 entry discovered by Vigilance Cell, which shows that caste of father of petitioner was recorded as Kshtriya Telgu . Petitioner objected to this entry by pointing out that there is no caste by such name and the recording is incorrect. That contention has not been 2 considered and by applying the affinity test, the caste claim of the petitioner has been invalidated. Adv. Mr. Phadnis states that traits and customs disclosed by petitioner in his affidavit dated 25th March, 2004 have not been looked into. 3. Adv. Mr. Sambre for respondent no.2- Committee states that in the affidavit dated 25th March, 2004, there are material improvements and the Committee has considered traits and customs as disclosed by candidate at the time of his interview by Vigilance Cell. He further states that as caste of father of petitioner was found to be recorded as Kshtriya Telgu, the document in relation to great grand- father becomes irrelevant. He explains that the Scrutiny Committee cannot evaluate the contention that caste of father as recorded was incorrect. 4. The Scrutiny Committee has totally overlooked the case of the petitioner that there is no caste by name Kshtriya Telgu. Had the Scrutiny Committee recorded a finding that such a caste is in existence, then it may have been justified in refusing to act upon the old document dated 7th August, 1924. The specific contention of petitioner in this respect has been overlooked and by treating the caste as recorded in 1947 in the document to be correct one, the old document has been overlooked. 3 Similarly, in para 5 of the affidavit dated 25th March, 2004, petitioner has disclosed some traits and customs being followed and the Committee has not considered those traits and customs. Said affidavit was filed in exercise of legal right by the petitioner because of opportunity given to him by the Scrutiny Committee. If the Scrutiny Committee found that there was any improvement and then those traits and customs were incorrect, the Scrutiny Committee could have recorded appropriate finding in that respect. That has not been done. 5. We, therefore, find that there is a failure to apply mind by respondent no.2- Scrutiny Committee to the caste claim of the petitioner. Impugned order dated 30th March, 2005 is, therefore, quashed and set aside. Matter is restored back to the file of respondent no.2-Scrutiny Committee for taking a fresh decision as early as possible and in any case by 30th June, 2010. The petitioner shall appear before the Scrutiny Committee on 29th September, 2009, and shall abide by its further directions in the matter. Rule accordingly. No costs. Judge Judge |Hedau| 4