{1} wp348610.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3486 OF 2010 Sudhakar s/o Pandit Patil, age: 41 years, Occ: Social worker, R/o Tilaknagar, Jalgaon Road, Sillod, Tal. Sillod, District Aurangabad. Petitioner Versus 1 The State of Maharashtra, through the Secretary, Social Welfare Department, Mantralaya, Mumbai. 2 Divisional Caste Scrutiny Committee No.1, CIDCO, N-4, B-26, Aurangabad, through its Secretary. 3 Smt.Nafisa Begam w/o Abdul Sattar, age: 46 years, President, Municipal Council, Sillod, R/o Snehnagar, Behind Police Station, Sillod, Tal.Sillod, District Aurangabad. Respondents Mr.V.D.Sapkal with Shri U.B.Bondar, advocates for the petitioner. Mr.N.B.Khandare, Government Pleader for Respondents No.1 & 2. Mr.R.N.Dhorde, advocate holding for Mr.A.S.Bayas, advocate for Respondent no.3. {2} wp348610.odt CORAM : D.B.BHOSALE AND R.M.BORDE, JJ. DATE : 25 th January, 2011 ORAL ORDER (Per R.M.Borde, J.): 1 Heard arguments advanced by Shri V.D.Sapkal with Shri U.B.Bondar, learned Counsel appearing for the petitioner, Shri N.B.Khandare, learned Government Pleader for Respondents No.1 & 2 and Shri R.N.Dhorde, learned Counsel holding for Shri A.S.Bayas, advocate for Respondent no.3. 2 The petitioner, who is an elected member of Municipal Council Sillod, is raising exception to the order passed by the SC, VJNT, OBC & SBC Divisional Caste Certificate Verification Committee No.1, Aurangabad Division, Aurangabad, dated 12.03.2010, whereby the caste claim forwarded for verification in respect of Respondent No.3 has been validated. 3 Respondent No.3 claims to be belonging to “Momin” caste, which is included in Other Backward Class category. Respondent No.3 is also an elected member of the Municipal Council and she has been elected as the President of the Municipal Council from amongst the elected members of the Council. {3} wp348610.odt 4 During earlier round of litigation, the caste validity certificate issued in favour of Respondent No.3, after conducting scrutiny of all the documents by the Committee, was subjected to challenge by the petitioner in Writ Petition No.6335/2009. After considering the contentions of respective parties, this Court took a view that the caste validity certificate has been issued without recording reasons in support of the final order and as such, same needs to be quashed and set aside. This Court, while allowing the petition, was pleased to remit the matter back to the Scrutiny Committee for reconsideration of the caste claim of Respondent No. 3. It was also directed by this Court that the petitioner herein shall be given an opportunity of hearing and after considering the evidence, documentary as well as oral, led by the petitioner as well as Respondent No.3, the Committee shall proceeded to decide the matter afresh. 5 In pursuance of the judgment and order passed by this Court in Writ Petition No.6635/2009 on 28.01.2010, the Scrutiny Committee took up the matter for consideration and after extending an opportunity of hearing to both the sides, delivered a detailed judgment on 12.03.2010 recording reasons in support of the conclusions drawn by the Committee and has directed issuance of caste validity certificate in favour of Respondent No.3. 6 Shri Sapkal, learned Counsel appearing for the {4} wp348610.odt petitioner, has vehemently contended that the Committee did not consider the documents submitted by the petitioner and proceeded to decide the matter. It is further contended by the petitioner that the document, namely, first page of the service book of brother of Respondent No.3, records his caste as Muslim and religion as Islam. Another document, in the form of service record of father of Respondent No.3, also records his caste (father’s caste) as “Muslim Hanafi”. It is also contended that the school leaving certificate issued in favour of Respondent No.3 also records her caste as Muslim. It is, thus, contended that the entry in the service record of father as well as her brother and her own school record shows that they belong to Muslim community and according to the petitioner, the entry recorded in the aforesaid documents in respect of caste is contrary to the claim put forth by Respondent No.3, that she belongs to “Momin”, Other Backward Class category. It is also the contention of the petitioner that there is manipulation in the record in respect of Birth Register of the year 1964, maintained by Municipal Council, Bhokardan. It is also contended that reliance placed on the school record of Bilkis Begum, which records her caste as “Momin” cannot be considered to be advantageous to Respondent No.3, as, according to the petitioner, said Bilkis Begum, in fact, is not the real sister of Respondent No.3. It is also contended by the petitioner that Nikahnama, placed on record by Respondent No.3 to substantiate her claim, is a false and fabricated document. According to the {5} wp348610.odt petitioner, all the contentions noted above have not been considered by the Scrutiny Committee and as such, the decision rendered by the Committee is without application of mind to the record of the case and as such, is liable to be quashed and set aside. 7 Learned Counsel appearing for Respondents have supported the decision rendered by the Committee. 8 On perusal of the judgment of the Scrutiny Committee, it is evident that the Committee, in order to verify the claim raised by Respondent No.3, recorded evidence of witnesses and has also scrutinised the documentary evidence placed on record. The Chief Officer of Municipal Council, Bhokardan, appeared before the Committee and his statement was recorded on 24.02.2010. It is deposed by the Chief Officer that there is an entry recorded in the Birth Register maintained by the Municipal Council in respect of birth of Respondent No.3 Nafisabegum and her date of birth is 11.07.1964. It is also deposed by the witness that there is no alteration in the column in respect of caste of Respondent No.3 in the said register wherein entry in respect of her caste has been recorded as “Momin”. It is also admitted by the witness that there is an alteration in the column in respect of name of the father of Respondent No.3. Initially, it was written as “Sk. Amir”, which has been corrected as “Sk.Kasim”. The mistake has occurred obviously {6} wp348610.odt for the reason that Sk.Amir is the father of Sk. Kasim i.e. grand father of Respondent No.3. The mistake, that had occurred while writing name of father of Respondent No.3, has been corrected, which, obviously, is a clerical mistake. The petitioner, who was present before the Committee, chose not to cross examine the witness i.e. Chief Officer of the Municipal Council who deposed before the Committee and as such, the petitioner cannot be allowed to make any grievance in that regard. 9 The Committee also summoned the Head Master of Zilla Parishad School, Bhokardan along with original school admission record pertaining to Bilkis Begum, sister of Respondent No.3. The Committee, on perusal of the original record and on consideration of the evidence of Head Master, was satisfied that there is an entry in respect of caste of Bilkis Begum, in the school record, as “Momin”. The petitioner, who was present before the Committee, chose not to cross examine the witness and did not raise any objection to the effect that Bilkis Begum, in fact, is not the sister of Respondent No.3. The petitioner, in these circumstances, cannot be permitted to raise an objection, for the first time, in this writ petition. 10 The Committee has also considered the school record of Respondent No.3 as well as evidence in the form of `Nikahnama ‘ produced on behalf of Respondent No.3 before the Committee. The {7} wp348610.odt Committee was of the opinion that the entry in the school record of Respondent No.3, recording her religion as Muslim, cannot be considered as contra evidence for the reason that Muslim is a religion and a Muslim can be either Momin or Khatik or Muslim Tamboli or Muslim Bagwan, Muslim Attar, Muslim Dhobi, Muslim Pinjara or may belong to any such caste. 11 The Committee has also considered the vigilance cell inquiry report which supports the claim put forth by Respondent No.3. So far as adverse report submitted by District Social Welfare Officer on earlier occasion is concerned, the same has been discarded by the Scrutiny Committee for the reason that the District Social Welfare Officer is not authorised to conduct vigilance cell inquiry. It has also been taken into consideration by the Committee that the forefathers of Respondent No.3 were weavers by occupation. Considering all the documentary evidence as well as the report of vigilance cell inquiry, the Committee proceeded to validate the claim of Respondent No.3, after recording adequate reasons in support of the order. 12 We have perused the order passed by the Scrutiny Committee and we are of the opinion that the Scrutiny Committee has taken into consideration all the relevant material and has proceeded to decide the matter in favour of Respondent No.3. We do not find that the view taken by the Committee is unreasonable. {8} wp348610.odt 13 So far as the objection raised by the petitioner in respect of non consideration of the documentary evidence placed by him before the Scrutiny Committee, is concerned, we find that the documents on which reliance is placed, in fact, do not go to controvert or contradict the claim of Respondent No.3. The entry in respect of religion of Respondent No.3 or her blood relations in the school record or service record, cannot be construed as a contra evidence and does not adversely affect the claim put forth by Respondent No.3. The objection raised by the petitioner to the effect that Bilkis Begum is not the sister of Respondent No.3 is without any substance. The petitioner, although, was present before the Committee, has failed to raise such objection and chose not to cross examine the witness i.e. the Head Master of the School who had appeared before the Committee along with the relevant record and as such, the objection raised by the petitioner, in this petition, for the first time, cannot be entertained. There is absolutely no contra evidence produced by the petitioner to controvert the claim put forth by Respondent No.3. 14 The Committee was justified in observing that the entry in the school record pertaining to Respondent No.3 or in the service record of her blood relations in respect of their religion as Muslim cannot be considered as a contra evidence. The said finding gets support from the judgment of this Court in the matter {9} wp348610.odt of Mohammed Ismael Ansari s/o Mohammed Masudoddin Ansari Vs. The State of Maharashtra & others (Writ Petition No.2666 of 2003 decided on 25.11.2003). The Division Bench of this Court has referred to the directives issued by the Government in communication dated 22.07.1996, wherein, it has been directed by the Government to the concerned authorities that, all those, who are dealing with the caste/tribe claims in relation to the persons professing Muslim religion, to find out their caste/tribe, not to reject the claims only on the ground that relevant record bears entry of religion as Muslim. It is observed in paragraph no.5 of the said judgment, as below: “Moreover, we noticed that in case of Muslims, generally their sub-caste is not mentioned. In this case, in all the documents, only religion is referred. Therefore, merely observing that in the caste column, the word Muslim is mentioned, the Committee cannot reject the claim of the petitioner.” 15 We are of the considered opinion that the Scrutiny Committee, while dealing with the matter, considered all the relevant evidence placed on record and has recorded proper reasons in support of the conclusions drawn by the Committee. The reasons recorded by the Committee, in support of the order, are logical and proper and in exercise of extraordinary jurisdiction conferred upon this Court under Article 226 of the Constitution, we do not deem it necessary to cause interference in the impugned {10} wp348610.odt order. The petition presented by the petitioner is devoid of substance. 16 Writ Petition, therefore, stands rejected. R.M.BORDE D.B.BHOSALE JUDGE JUDGE adb/wp348610