KIRTI SHIVKUMAR LATHKAR v. THE STATE OF MAHARASHTRA AND ORS

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Divisional Caste Certificates Scrutiny Committee No.1, Aurangabad Division, Aurangabad, by which her caste claim of belonging to "Jangam" (OBC) was invalidated.

2. The factual details necessary for the purpose of adjudication of the petition can be narrated as under:

. Petitioner was elected a Municipal Councillor from a seat reserved for OBC (Woman) from Ward No.33 of Municipal Council, Parbhani. Present respondent no.6 was the other candidate at the said election. She had relied upon a caste certificate issued by Deputy Collector, Parbhani, on 22.9.2006 declaring her as belonging to "Jangam" caste (OBC). Soon after election, her caste claim was subjected to scrutiny by the competent scrutiny committee and her caste certificate of belonging to "Jangam" caste (OBC) was validated by the scrutiny committee inspite of objections raised by present respondent no.6.

. The said order was challenged by two writ petitions - Writ Petition No.1446/2007 filed by

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present respondent nos.6 & 7 and Writ Petition No.1947/2007 filed by present respondent no.8. While allowing both the writ petitions by judgment and order dated 2.11.2007, earlier Division Bench of this High Court ordered thus:

"18. In view of above, the order of caste scrutiny committee dated 14.07.2007 in respect of respondent no.3 is hereby quashed and set aside. Respondent - Caste Scrutiny Committee is directed to hold fresh enquiry and call fresh Vigilance Cell report, consider documents produced by petitioners in both the Writ Petitions and also documents which are already produced before it. It may consider documents and other evidence that may be hereinafter produced by respondent no.3 - Kirti Latkar and also by respondent nos.4 & 5. After calling fresh report of Vigilance Cell and after giving full opportunity to lead evidence to petitioners also respondent nos.3 to 5 in Writ Petition No.1446 of 2007, the Caste Certificate Verification Committee shall

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decide caste claim of respondent no.3 - Kirti Latkar, within four months from the date of this order."

. There were some specific directions issued as contained in para 19 and since those directions are relied upon by learned counsel for petitioner during the course of his arguments, also need to be usefully reproduced:

"In case, respondent Scrutiny Committee comes to a conclusion that respondent no.3 - Kirti Latkar is of Jangam caste, which is recognized as O.B.C. in that case the committee may consider action in respect of certificates issued to respondent nos.4 & 5 of being Malajangam. It may take appropriate steps according to law, if it appears that they have taken advantage of such certificates. In case, Scrutiny Committee comes to a conclusion that respondent no.3 - Kirti Latkar is Malajangam which is recognized as Scheduled Caste, it should cancel the caste certificate

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issued in her favour as Jangam O.B.C. and take further appropriate steps according to law."

. It is after this remand that the impugned order invalidating the caste claim of petitioner is passed. However, the impugned order does not specifically record whether the scrutiny committee believes petitioner to be "Mala Jangam". Since caste claim of petitioner is invalidated, probably, the scrutiny committee does not seem to have passed any orders against her brother or father. Apart from directions to Collector, Parbhani, to cancel her membership of the Municipal Council and directing Deputy Superintendent of Police to file appropriate prosecution, no other action is ordered by the impugned decision.

3. Since we are informed that 31.10.2008 is the date fixed for declaration of programme of by-election for the vacant seat and 8.11.2008 is the last date for acceptance of nominations, it had become necessary to hear the matter with urgency. (The Court is closed

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for Diwali vacations from 25.10.2008 to 9.11.2008). Consequently, the matter, which was on Board on 16.10.2008 was specifically placed for hearing with understanding to the lawyers that it would be heard at the admission stage for final disposal and the matter was accordingly heard on 21.10.2008.

. Advocate Shri C.K. Shinde, who represented the scrutiny committee, had disclosed to us that his term with the scrutiny committee had come to an end on 18.10.2008. As the matter was earlier posted on 16.10.2008, the scrutiny committee had forwarded the original file to him so as to be made available for ready reference to the Court at the time of hearing. However, in view of his tenure having come to an end on 18.10.2008, he felt that it may not be appropriate for him to work out the matter. We did not have any intimation regarding any other lawyer having been engaged by the scrutiny committee. Shri Shinde being versed with the matter, in view of the fact situation that the writ petition was taken up for hearing with urgency, in order to ensure that it does not stand frustrated by election programme which is likely to

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commence on 31.10.2008, we have directed Advocate Shri C.K. Shinde to argue on behalf of the scrutiny committee, may be as amicus curiae, if not as a lawyer of the scrutiny committee.

. An attempt was made to seek adjournment on behalf of respondent no.8 since Advocate Shri S.S. Jadhavar had filed leave note and seeing our inclination to reject the prayer, Advocate Shri S.P. Chapalgaonkar has conducted the matter on behalf of respondent no.8, holding for Advocate Shri S.S. Jadhavar.

4. Heard respective counsel. Rule. Rule made returnable forthwith by mutual consent. So far as respondent nos.6 & 7, who are absent and who were also complainants alongwith respondent no.8 challenging earlier order of the scrutiny committee dated 14.7.2007 thereby validating the caste claim of petitioner, their interest stands represented by respondent no.8, who is represented by a lawyer. Advocate Shri C.K. Shinde has made available for ready reference the original file of the scrutiny

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committee.

5. Advocate Shri Talekar for petitioner submitted that this Court in its judgment and order dated 2.11.2007 had specifically directed the scrutiny committee that it should cancel the caste certificate of petitioner declaring her to be "Jangam" (OBC), only if it arrives at a conclusion that petitioner is "Mala Jangam". The scrutiny committee has not complied with the directions and without recording a finding that she belongs to "Mala Jangam" has invalidated the caste claim of petitioner. Shri Talekar relied upon earlier Vigilance Cell report at paper book pages 27 to 30 and present Vigilance Cell report at paper book pages 47 to 55. He pointed out that father had supported the caste claim of petitioner by an affidavit and he had also clarified that affidavit supporting the caste claim of brother Venkatesh of his belonging to scheduled caste "Mala Jangam" was erroneously supported by him. (We may state here itself that father of petitioner is not an uneducated person, but he is a person having secured doctorate (Ph.D.). Shri Talekar mainly relied upon documents at

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Sr.Nos.5,6,8,21,23,24 and 25 in the list of 40 documents considered by the scrutiny committee. He pointed out that the school record of petitioner as well as her brother and sister shows that their caste at the stage of admission in the school was recorded as "Jangam" and these are the events of the year 1977 or 1980. He also pointed out that in the second Vigilance Cell report, although there is a reference to an application by husband of petitioner for correction of school record pertaining to Veerendra and Yashashri (children of petitioner) whose caste was erroneously recorded in the school record, that was an event which took place in January 2005 as explained by petitioner in her reply dated 1.4.2008. The elections at which petitioner was elected took place in November, 2006 and, therefore, it can not be said that the school record of children of petitioner was corrected by keeping an eye on the elections. The reservations, which are drawn by lots were unknown to petitioner when such an action was taken. Shri Talekar also relied upon the fact that service record of mother of petitioner showed her caste to be

"Jangam" although there is no such reference in the

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service record of father wherein the column of caste only shows "Hindu". Argument of Advocate Shri Talekar can be summed up in one sentence. According to him, all the claims and even support by the parents of petitioner to the claim of her brother of his belonging to scheduled caste "Mala Jangam" must be taken as wrong / erroneous in view of the fact that parents had recorded the caste of petitioner and her brother / sister in the school record as "Jangam".

Thus, if at all, the caste claim of brother and support to such caste claim by the relatives is wrong and not the caste claim of petitioner. According to Shri Talekar, conduct of parents should be considered as more weighty than validity certificate in favour of brother, which has weighed on the mind of the scrutiny committee to invalidate the caste claim of petitioner.

6. While defending the impugned order, Advocate Shri C.K. Shinde pointed out that although committee has not recorded that petitioner belongs to scheduled caste "Mala Jangam", that by itself is not sufficient to compel the committee to accept the caste claim of petitioner to be belonging to "Jangam". He placed

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reliance upon documents at Sr.Nos.31 and 33 in the list of 40 documents considered by the scrutiny committee and urged that father as well as paternal uncle of petitioner had obtained caste certificates of belonging to "Mala Jangam" caste. According to him, these documents have a very strong probative value against the claim of petitioner. He also pointed out that father having filed an affidavit supporting the caste claim of son Venkatesh to be belonging to "Mala Jangam" caste now can not be allowed to say that he and petitioner belong to "Jangam" caste. He also placed reliance upon statement of father as recorded by the scrutiny committee at page 338 of the file. Lastly, it was submitted by him that under Article 226 of the Constitution while considering the correctness of the order of scrutiny committee, this Court may not assume the role of appellate authority. The reasons assigned by the committee are not perverse and extreme and, therefore, he urged for dismissal of the writ petition without interference in the order of the scrutiny committee.

. Advocate Shri Chapalgaonkar h/f Advocate Shri

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S.S. Jadhavar has adopted entire argument of learned counsel for the scrutiny committee. According to Shri Chapalgaonkar, even ignoring the adverse effect of the validity certificate of belonging to "Mala Jangam"

caste issued in favour of real brother of petitioner, the material upon which petitioner has placed reliance is not sufficient to independently establish that petitioner belongs to "Jangam" (OBC). According to him, no reliance can be placed upon service record of the mother because she comes from a different family and she is not blood relation of the father of petitioner. Petitioner must support her claim by relying upon the caste of the father and not that of the mother. Shri Chapalgaonkar also urged that in view of support to the claim of son Venkatesh by the father by an affidavit that he belongs to "Mala Jangam" caste, now it is not open for the father to claim to be belonging to any different caste. Shri Chapalgaonkar, on behalf of the original complainant, thus urged for dismissal of the writ petition.

7. Learned counsel Shri Talekar for petitioner has laid much emphasis on the fact that the scrutiny

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committee has not recorded a specific finding that petitioner belongs to scheduled caste Mala Jangam and, therefore, it has not observed the directions issued by the Court while disposing of two writ petitions of the three complainants on 2.11.2007. Indirectly even Shri Talekar suggested further remand with specific directions to the scrutiny committee that it should record whether petitioner belongs to Mala Jangam community. Advocate Shri Shinde has replied this argument by placing reliance upon observations of another Division Bench of Bombay High Court in the matter of Ravindra Solanke V/s State of Maharashtra (2006 (6) ALL MR 605). The relevant observations from para 6 read thus:

"Similarly, the scrutiny committee is also required to take a decision for validating or invalidating caste claim of the candidate only on the basis of documentary evidence available on record as well as after applying affinity test. The decision of the caste scrutiny committee is merely a declaration that the evidence available on record is adequate

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enough to hold that the candidate belongs to a particular caste and such declaration only validates the caste certificate of such candidate issued by the competent authority. The committee, on its own, does not have power to declare that a particular person belongs to a particular caste."

. We do not think it is necessary to stretch this point to further limits. It is evident from the impugned order that the scrutiny committee mainly relied upon the documents, which showed real brother and other relatives of petitioner having frequently claimed to be members of "Mala Jangam" caste and couple of them including her real brother Venkatesh having obtained validity certificate of belonging to the said caste. It must be said that, impliedly the scrutiny committee has recorded an observation of the family belonging to "Mala Jangam" caste. Merely because the committee has not recorded a specific finding that petitioner is a member of "Mala Jangam"

caste, that is not sufficient to infer that petitioner belongs to "Jangam" caste, which she claims.

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8. Coming to the list of 40 documents, which were examined by the scrutiny committee for the purpose of arriving at its own conclusions, we must say that the documents at Sr.Nos.9, 12 to 20 and 22 are relating to either her husband and his relatives. A person derives his caste from "father" and not from

"husband". Therefore, these documents regarding caste of her husband and relatives do not render any support to petitioner's caste claim. No doubt, ordinarily marriages are within caste and inter-caste marriages still being exceptions. So evidence regarding husband and his relatives, if at all could have had some minimal weight. But in this context, we can not ignore petitioner having admitted in her statement dated 1.4.2008 (paper book pages 63 & 64) having admitted that father of her children (her husband) Veerendra and Yashashree had recorded their caste in the school record at the time of admission of the children to the school as "Mala Jangam", he realised the mistake lateron and on 13.1.2005, he applied for correction of the same to "Jangam". No doubt, as rightly argued by Advocate Shri Talekar, elections

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took place in November, 2006, and it is possible for petitioner to say that this was not done by keeping an eye on the ensuing elections, because by that time, delimitation of the wards and reservations might not have been determined. However, fact remains that husband recorded caste of his children as "Mala Jangam". Why he did so is not answered in the reply to Vigilance Report by petitioner on 1.4.2008. This action of husband not only gives total set back to whatever value the documents at Sr.Nos.9, 12 to 20 and 22 had in favour of caste claim of petitioner, but it also creates doubts about what is the caste of husband and if marriage is presumed to be within caste, this action of husband also supports statements of her father, brother Venkatesh and sister Preetirani that the family is of "Mala Jangam" caste.

9. Documents at Sr.Nos.1, 3, 4, 10, 11, 21, 25, 34, 35 and 39 are also inconsequential. Those documents neither advance the cause of petitioner nor damage her caste claim. Sr.No.1 is certificate of petitioner herself, which is under scrutiny. Sr.Nos.10 & 11 are the caste certificates of her

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children Veerendra and Yashashree and although of belonging to caste "Jangam", those are obtained on 22.2.2006 and can not have any value in support of petitioner's caste claim in view of admission that husband had recorded caste of children as "Mala Jangam" at the time of admission to the school. Sr.No.21 extract of service record of mother showing her caste to be "Jangam" is required to be ignored, because in the male dominated society where children derive their caste from father and not from mother. Certificate of great grandfather Bhimaji (Sr.No.25) is issued by the Village Development Officer and on 5.12.2006. Obviously, this being after election, it is obtained for serving the purpose and also it is a certificate issued by an authority, which was not authorised to issue caste certificate. Documents at Sr.Nos.34 & 35 i.e. extract of school admission register of her uncle Ishwar and father Laxman show their caste to be Hindu only. Sr.No.39 is school leaving certificate of Dagadayya, who is husband of paternal aunt of petitioner and not a blood relation deriving the caste from common male ancestor.

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10. This leaves two sets of documents, one favour the caste claim of petitioner to be belonging to caste

"Jangam" and another indicating that members of the family have consistently claimed to be belonging to

"Mala Jangam".

______________________________________________________ No. Sr.No. Particulars Date

of document

______________________________________________________

1. Sr.No.2 School leaving certificate of petitioner. Date of

admission 16.6.1980

2. Sr.No.5 Caste certificate of uncle Shankarrao 27.1.2003

3. Sr.No.6 Caste certificate of uncle Ganesh 13.7.1989

4. Sr.No.7 Extract of admission register regarding petitioner 1.7.1977

5. Sr.No.8 Caste certificate of cousin brother Arun 5.12.1986

. All these documents indicate the caste of individuals concerned to be "Jangam".

6. Sr.No.26 Extract of admission register of brother Venkatesh 20.6.1988

7. Sr.No.27 Extract of admission register of sister Preetirani 20.6.1988

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8. Sr.No.28 Caste certificate of sister Preetirani issued by Executive Magistrate 29.6.1994

9. Sr.No.29 Validity certificate of brother Venkatesh 4.10.1993

10. Sr.No.30 Caste certificate of brother Venkatesh by 23.6.1993 Executive Magistrate

11. Sr.No.31 Caste certificate of father Laxman issued by Executive Magistrate 17.7.1978 (In fact, caste certificate of uncle Ishwar (file page 79) (In fact, in record, there is caste certificate issued by Executive Magistrate, Parbhani, in favour of uncle Ishwar on 17.7.1978 at file page 79. There is no certificate issued in favour of father on 17.7.1978 by Executive Magistrate, but at page 173 of the file, there is a certificate dated 10.5.1985 issued by President, Mala Jangam, Beda Jangam Society, Nanded and at page 271, there is caste certificate issued in favour of father by Talathi, both indicating father Laxman to be member of "Mala Jangam" caste.)

12. Sr.No.32 Caste certificate of uncle Ishwar issued by community

25.11.1984

13. Sr.No.33 Caste certificate of uncle Ishwar by Executive 7.9.1978 Magistrate

14. Sr.No.36 Caste certificate of uncle Ramling issued by Sarpanch

15. Sr.No.37 Caste certificate of relative Mahaling 30.9.1992

16. Sr.No.38 Validity certificate of

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Mahaling 19.5.1998

17. Sr.No.40 Validity certificate of cousin brother Amit s/o

Ishwar 23.6.1994

______________________________________________________

. It seems that entry in the admission register of the school seems to be the only piece of evidence that supports the caste claim of petitioner, otherwise members of the family have not only consistently claimed to be belonging to caste "Mala Jangam", but brother has also reaped the benefits of it. He had secured admission on a seat reserved for reserved caste by claiming to be "Mala Jangam" and passed his

B.D.S.

. No doubt, it can be argued that entry in the school register at the stage of admission of petitioner was first in time and, therefore, subsequent claims may be treated as false claims. However, even during the statements recorded at the time of second inquiry in January / February, 2008, father Laxman, brother Venkatesh and sister Preetirani have maintained their claims of belonging to "Mala Jangam" caste. These statements are referred by us

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from the original file of the scrutiny committee. It appears that petitioner has expressed her inability to explain as to why her brother and sister are claiming to be of "Mala Jangam" caste (file page 325). Husband Shivkumar in his statement dated 28.1.2008, except saying that by mistake, he had recorded the caste of children to be "Mala Jangam" at the time of admission of children has not been able to offer, what could have been satisfactory explanation for such mistake. The statement of father is at file pages 338 and 339 and he has said that although he has filed an affidavit in favour of petitioner, he had signed the same without knowing the contents as his eyesight has become pretty weak.

. We could have given more weight to the school record of petitioner, that being the oldest entry. However, action on the part of husband of recording caste of his children to be "Mala Jangam" is sufficient to nullify the favourable effect, if any, the school record of petitioner has. False statements can be made on oath. False documents can be prepared, however, natural course of conduct and reactions are

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seldom dishonest. When husband admitted children of petitioner to the school, there can be no other explanation except even husband belonging to "Mala Jangam" caste to his action of recording the caste of children as "Mala Jangam".

. In the file of the scrutiny committee at page 211, there is an affidavit of one Gangadharrao Marutrao. He has stated on oath that Ramling Bapayya Jungam Maharaj r/o Mandakhali, aged 70 years, caste

"Mala Jangam" performs religious rites in the village and he recognises him as Jangam Maharaj. If at all some possible explanation is necessary for entry of caste "Jangam" in school record of petitioner, that can be inferred from this affidavit. There appears a probability at times "Jangam" is used as short-form even for "Mala Jangam".

11. For all the reasons recorded hereinabove, as rightly argued by learned counsel Shri C.K. Shinde, in this judicial review under Article 226 of the Constitution, it may not be possible to say that the view taken by the scrutiny committee is perverse. The

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writ petition, therefore, deserves to be dismissed and is accordingly dismissed.

(N.D. Deshpande, J.) (N.V. Dabholkar, J.) ndk/wp083382