1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5366 OF 2007 Harischandra Mahadeo Pote, Adult, Indian Inhabitant, presently residing at C-1, Omkar Building, Dadarkar Compound, Tardeo Road, Mumbai – 400 034. ..Petitioner. Versus 1. The State of Maharashtra through its department of Social Welfare, Mantralaya, Mumbai. 2. The State Election Commission, Administrative Building, 1 st Floor, Opp.Mantralaya, Mumbai. 3. The Commissioner, Municipal Corporation of Greater Mumbai, Mahapalika Marg, Mumbai. 4. The Caste Certificate Scrutiny Committee, Konkan Bhavan, CBD Belapur, Navi Mumbai - 2 400 614. 5. The Deputy Collector, Mumbai City, Old Customs House, Mumbai. 6. Smt.Bhavna Dhiraj Koli, alias Miss.Bhavna Bhagwan Maru, R/at D-ward Office building, R.No.110, Johanputra Compound, Nana Chowk, Mumbai – 400 007. 7. Topiwal Pushpapark Municipal Corporation High School, through its Principal, having office at Bachani Nagar, Daptari Road, Malad (East), Mumbai – 400 097. ..Respondents. ... Mr.R.K. Mendadkar, Advocate for the petitioner. Mr.Pramod Patil, Advocate for respondent No.6 Mr.V.P. Malvankar, A.G.P. for the State. .... CORAM : BILAL NAZKI, AND SMT.V.K.TAHILRAMANI,JJ DATE OF RESERVING THE JUDGMENT : 25TH JUNE, 2009 DATE OF PRONOUNCING THE JUDGMENT : 24TH AUGUST, 2009. 3 JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] :- 1. Through this Petition, the petitioner has impugned the order dated 18.5.2007 passed by the respondent No.4 – Caste Certificate Scrutiny Committee. 2. A few relevant facts are as under: Petitioner and respondent No.6 Smt.Bhavna Koli contested from Ward No.211 in the Bombay Municipal Corporation General Election of 2007. Both the petitioner as well as respondent No.6 were contesting from SC Category. In the said elections, respondent No.6 was declared elected. 3. Thereafter the petitioner received information regarding caste certificate of respondent No.6, from the State Election Commission as well the office of the Collector as well as from the office of the Deputy Collector and according to the petitioner he came to know that respondent No.6 has used 4 false and fabricated documents for obtaining her caste certificate from the competent authority. Hence,the petitioner raised objection before respondent No.4 – Caste Certificate Scrutiny Committee and pointed out to the Committee that respondent No.6 has used false documents and procured the caste certificate as “Hindu Meghwal” from the Collector – Respondent No.5 though infact in her school leaving certificate, her caste was mentioned as Hindu Harijan. 4. The petitioner preferred another application dated 23.3.2007 before the Caste Scrutiny Committee stating therein that respondent No.6 used fabricated documents not only before the competent authority but also before the committee with a view to obtain her caste certificate and caste validity certificate. Respondent No.6 filed application in support of her caste claim. Meanwhile (vigilance officer) submitted report before the Committee stating that respondent No.6 5 used false and fabricated documents to obtain her certificate from the competent authority and in all the documents the word “Meghwal” was not mentioned. The petitioner filed his affidavit before the Committee and respondent No.6 was also called upon to file affidavit of document or evidence before the Scrutiny Committee. Both petitioner and respondent filed their respective written submissions and also made oral submissions. Thereafter, the impugned order validating the caste certificate of respondent No.6 as Harijan Meghwal came to be passed. 5. We have heard Mr.Mendadkar, the learned Advocate for the petitioner, Mr.Pramod Patil the learned Advocate for respondent No.6 and Mr.V.P.Malvankar, the learned A.G.P. for the State. 6. The petitioner proved her caste by producing 31 documents, which are as under : 6 Sr. No. Details of Proof 1. Certificate bearing No.MAG/CC/D-55/1997 dated 30.1.1997 of Hindu Meghwal, Scheduled Castes (SC-50) issued to Smt.Bhavna Dhiraj Koli, Candidate by Deputy Collector, Mumbai City. 2. School Leaving Certificate No.3728 dated 12.8.1988 issued to Maru Bavnaben Bhgwan (petitioner) by Headmistress, Topiwala Lane School. 3. School Leaving Certificate No.25938 of Shri Mohan Somabhai Maru. 4. School Leaving Certificate No.154 dated 9.10.1992 issued by Headmistress of Mun.Arya Nagar Higher Primary Gujrati School to Shri Mohanbhai Somabhai Maru. 5. Certificate dated 20.1.1990 issued by Shri Soma Narsi Maru about having working in MNC. 7 6. Ration Card No.0418464 dated 26.10.1995 of Shri Jaysingh Mansukh Koli. 7. Caste Certificate No.905 dated 25.12.1996 issued to Smt.Bhavna Dhiraj Koli (petitioner) by Mumbai Meghwal Panchayat. 8. Marriage Memorandum dated 6.1.1997 Smt.Bhavna Dhiraj Koli her maiden name Bhavna Bhagwan Maru. 9. Identity card of Shri Soma Narsi Maru working in cleaning department in MNC Mumbai. 10. Marriage Certificate dated 2.1.1997 issued by Mumbai Meghwal Panchayat of Shri Dhiraj Mansukhbhai and Bhavna Bhagwanbhai Maru. (Petitioner and her husband). 11. School Leaving Certificate No.126042 dated 31.3.2000 issued by Principal MNC Mumbai Primary Education Department of Shri Mohanbhai Somabhai Maru. 8 12. Caste Certificate No.E5271/83 dated 28.10.1983 issued by Additional Chief Metropolis Magistrate, Mumbai to Shri Mohan Soma Maru. 13. Birth Certificate No.5580 dated 16.9.1983 issued by MNC Mumbai to Shri Mohan Soma Maru. 14. Death Certificate No.98894 dated 17.4.1985 issued by Mumbai MNC to Shri Soma Narsi Maru. 15. Certificate about details of service issued by MNC Mumbai to Shri Bhagwan Soma Maru . (Father of petitioner). 16. Certificate issued by MNC, Mumbai stating that Shri Soma Narsi Maru is hutment dweller. 17. Certificate No.5299 dated 28.2.2007 about Service details about working in Mumbai MNC of Shri Mohan Soma Maru. 18. Certificate about details of service at MNC, Mumbai of Shri Bhagwan Soma Maru. (Father of petitioner). 9 19. Birth Registration Certificate issued by MNC Mumbai of Mangal Bhaga Maru. 20. Birth Registration Certificate dated 6.2.1992 issued by MNC Mumbai of Jaya Bhagwan Maru. 21. Letter No.504 dated 12.3.2007 giving details of school records issued by Principal Topiwala MNC Secondary School, Malad, Mumbai to Smt.Bhavna Ben Bhagwan Maru. 22. Death Certificate dated 15.3.2001 of Shri Rana Maru. 23. Family tree dated 15.3.2001 of Shri Rana Khemranaji. 24. Service certificate issued by Parsi Panchayat to Bhagwan Soma Maru (Father of petitioner) period 1.9.1960 to 24.4.1968 Sweeper. 25. Postal letter dated 10.10.1968 came in the name of Shri Bhagwan Soma Maru. (Father of petitioner). 26. Death Certificate dated 20.3.2002 of Bhika Soma Maru issued by Mumbai MNC Date of death : 1.10.1972. 10 27. School Leaving Certificate Registration No.373 dated 14.1.2002 issued by Principal Zondana Pri.School to Bhagwanbhai Somabhai Maru. Admission date : 22.2.1953. 28. Extract of voters list of the year, 1983 having entry of Bhaga Soma Maru Jasu Soma Maru and Ganga Bhaga Maru (Grandmother of petitioner). 29. Certificate issued to Bhika Soma More, Jasubhai Soma More of voters December 1960 to 1964. 30. Receipt of Provident Fund issued by Central Railway Year 1959-60 Post Sweeper. 31. Caste Certificate issued by District Social Welfare Officer, Zilla Panchayat Rajkot dated 21.1.2002. 7. The maiden name of the petitioner was Bhavana Bhagwan Maru. The name of the father of the petitioner was Bhagwan Soma Maru and name of real brother of her father is Bhika 11 Soma Maru. The petitioner has produced the abovenamed documents in support of her claim. As required under the law laid-down by the Apex Court, inquiry was made through Vigilance Squad. The vigilance squad submitted its inquiry report dated 26.4.2007. As per the inquiry report there is entry in the school certificate of the petitioner as “Harijan Meghwal” but when the General Register was inspected only the word “Harijan” was found. The school register of the School at Gujarat where Bhagwan Soma Maru i.e. father of the present petitioner was perused by the Vigilance Squad the entry therein was found as “Harijan”. Actually in the school certificate it is written as “Harijan (Meghwal)”. The name of the uncle and grandmother of the candidate, was found in the voters list. The school certificate of the candidate herself and her father entry as “Harijan” is found and it is noticed that “Meghwal” word is written infront of it later on. 12 8. The documents on record show that the Soma paternal grandfather of respondent No.6 had two sons Bhagwan & Bhika. Bhagwan being father of the petitioner and Bhika being the real brother of Bhagwan. The material on record shows that Bhika worked with the Central Railways at Mumbai as Sweeper from 1957 and the father of the petitioner Bhagwan worked as Sweeper from 1960 with the Parsi Panchayat in Mumbai. 9. The Scrutiny Committee has noted that in school certificate of the candidate it is written as Harijan. So also in the school certificate of the father of respondent No.6 there is mention as Harijan. Police Vigilance Squad also has given such opinion in report. So also there is proof that father of the candidate was in Maharashtra prior to 1960. As also More which is mentioned in the Voters list is later on made as Maru in the Voters list published thereafter. 13 10. For proving the caste claim of the candidate, if there is reference of the caste in the school entries or birth entries of the father, uncle or grand father then it is considered valid. In the present case in school certificate of candidate Harijan is noted. In school certificate of father of candidate, it is stated as Harijan. Father of candidate was working as Sweeper, upon which, he can claim he was belonging to Scheduled Caste. We have already noted above that both the father and real uncle of the petitioner were working as Sweepers in Maharashtra. In those days, the work of Sweeping was done by members of Scheduled Caste. 11. We may also make mention of the Circular dated 9 th September, 2004 issued by the Government of Maharashtra in respect of grant of caste certificate to Scheduled Caste persons. In the said Circular it is stated that, “it has come to the notice of Government that in the school 14 leaving certificate of some scheduled caste persons there is mentioned as “Harijan”. However, because of non-inclusion of caste Harijan in the list of Scheduled caste, such persons despite belonging to scheduled caste do not get caste certificate of that category. Therefore, in this regard, Government issues direction that if there is word written as “Harijan” in the caste column of school leaving certificate of certain backward class person and that person has submitted substantial documentary evidences regarding caste Fukhi, Bhangi etc. in respect of his father/grandfather/aunt/uncle along with his application for grant of caste certificate to the competent authority and on the basis of those documents applicant’s caste and his ordinary residence in Maharashtra is proved, then on the basis of documents submitted by him, suitable action for grant of caste certificate as demanded by the applicant be taken”. 15 12. Thus, it is clarified in the government circular dated 9.9.2004 that in specific castes instead of mentioning the caste the word “Harijan” used to be written. In the circular dated 9 th September, 2004, it is further stated therein that as Bombay State earlier included Karnataka, Gujarat and Maharashtra and on reconstitution separate State of Maharashtra, Karanataka and Gujarat came into existence on 1.5.1960. In such case, the persons in those regions belonging to Scheduled Caste will get caste certificate and benefits and in cases of persons who are from State of Karnataka and Gujarat, the condition of residence in Maharashtra prior to 1950 will not be applicable to them because they were residents of undivided Bombay State and in their case proof of residence of that person in Maharashtra since prior to 1960 would be accepted. The scrutiny committee has further noted that at Serial No.50 in the list of Scheduled Castes of 16 the Maharashtra Government the caste is included in the list of scheduled castes from 10.8.1950, but since the original native place of the candidate is Gujrat and separate state of Gujrat and Maharashtra was formed on 1 st May, 1960, it is not necessary that the proof of stay in Maharashtra should be prior to 1950 but it should be prior 1960. The father of the candidate was working in Parsi Panchayat, Mumbai from 1.9.1960 to 24.4.1968 as Sweeper. Uncle of the candidate Bhika Soma Maru was working in Central Railway Mumbai as Sweeper which is seen from the Provident Fund receipt issued by his office for the year 1958-59 and 1959-60. So also, it is seen from the Voters list that Grand mother of candidate was staying in Mumbai prior to 1960, upon which the residence of the father of candidate in Maharashtra is proved. 13. The material on record shows that the parents and grand- 17 parents of the petitioner were residents in Maharashtra since prior to 1960. The School certificates of the petitioner as well as her father show that the caste is mentioned as Harijan. Hence, this circular would be very much applicable to the petitioner. 14. Even if Shri Mohan Soma Maru on whose certificate the petitioner had placed reliance is not the real uncle of the petitioner, it is seen that however, the petitioner has independently proved her claim that she belongs to Scheduled Caste. Hence, we find no merit in this Petition. Rule discharged. No order as to costs. [BILAL NAZKI,J] [SMT.V.K.TAHILRAMANI,J.]