Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 2610 (BOM)

Dipak v. State of Maharashtra

2013-12-17

A.I.S.CHEEMA, R.M.BORDE

body2013
JUDGMENT R.M. Borde, J. 1. Heard. Rule. 2. With the consent of the parties the petition is taken up for final disposal, at admission stage. 3. The Petitioner is praying for quashment of the Judgment and Order passed by the Respondent No. 2 Caste Scrutiny Committee on 12th July, 2013 directing invalidation of the caste certificate issued in favour of the Petitioner. 4. The petitioner claims to be belonging to "Mang" caste which is a part of Scheduled Castes. The Petitioner tendered an application to the Respondent No. 3 for consideration of his claim for appointment in Class-IV category as a peon on compassionate ground. The request of the Petitioner was considered and he came to be appointed as a Peon as against a vacancy reserved for Scheduled Caste category. The caste certificate issued in favour of the Petitioner, certifying that he belongs to "Mang" caste has been referred to the Scrutiny Committee for validation. The scrutiny committee, however, on consideration of evidence placed on record by the Petitioner, directed invalidation of the caste certificate. This order is impugned in this petition. 5. The Petitioner, in order to substantiate his claim of his belonging to Scheduled Caste category, placed reliance on the documentary evidence in the form of his school record, the school record of his uncles and the service record pertaining to his father. In the school record of the petitioner, his caste is recorded as "Hindu Mang". So also, the school leaving certificate, issued in favour of the uncle of the petitioner by name Gangaram Banshi Shinde, records entry in respect of his caste as "Hindu Mange". The date of admission of the uncle of the petitioner in the school is 11th July, 1971. The school record of Vishwanath Banshi Shinde, uncle of the Petitioner, also records entry in respect of his caste as "Hindu Mang" and his date of birth is recorded as 14th May, 1949. That, so far as service record of the father of the petitioner is concerned, the entry in respect of his case was initially recorded as "Mang", however, the said entry is rounded and as against the said column, his caste is recorded as "Christian". 6. The Vigilance Cell has conducted home inquiry and tendered a report to the committee. That, so far as service record of the father of the petitioner is concerned, the entry in respect of his case was initially recorded as "Mang", however, the said entry is rounded and as against the said column, his caste is recorded as "Christian". 6. The Vigilance Cell has conducted home inquiry and tendered a report to the committee. The Vigilance Officer recorded a statement of father of the petitioner wherein he deposed about the custom and traditions of the "Mang" community. The father of the petitioner reiterated that he belongs to "Mang Caste" and has not relinquished the old order. Although the father of the petitioner has stated to the Vigilance Officer that he pays respect to Yeshu Christ and occasionally visit church, however, he belongs to "Hindu Mange" caste. The scrutiny committee, however, considering the entry recorded in the service record of the father of the petitioner and considering his statement that he visits church on certain occasions and pays respect to Yeshu Christ, proceeded to hold that the father of the petitioner has converted to Christianity and as such his claim for issuance of validation certificate cannot be considered. 7. We have perused the order passed by the scrutiny committee and heard the arguments advanced by the learned counsel appearing for the parties. In our view, the scrutiny committee has committed a serious error in holding that the father of the petitioner has converted to christen religion. There is absolutely no evidence on record to show that the family of the petitioner has relinquished Hinduism and adopted to new order i.e. Christianity. It is contended by the Petitioner that right from his birth he claimed himself to be belonging to "Mang" caste. The marriage of the parents of the petitioner was solemnised in accordance with Hindu faith and the mother of the Petitioner also belong to Hindu Mang caste. The petitioner and his brothers and sister are married in accordance with Hindu Custom and there is absolutely no evidence in respect of their conversion to Christianity. In order to determine the caste status of a person, wherein the issue of conversion is raised, it has to be established that there is a relinquishment of the old order and complete assimilation with the new faith. 8. In order to determine the caste status of a person, wherein the issue of conversion is raised, it has to be established that there is a relinquishment of the old order and complete assimilation with the new faith. 8. In this context, reference can be made to a judgment in the matter of Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, reported in AIR 1954 SC 236 . The question that arose for consideration before the Court was that after embracing Mahanubhavas faith whether the appellant therein can claim himself to be belonging to Mahar caste. While dealing with the issue, the Supreme Court has observed, in paragraphs 48 and 49 of the judgment as noted below: "(48) Conversion brings many complexities in its train, for it imports a complex composite composed of many ingredients. Religious, beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal. There is no clear-cut dividing line and it is not a matter which can be viewed from only one angle. (49) Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or excommunicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters which concern the political rights of the old body when neither the old body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order." 9. In the instant matter also, there is absolutely nothing on record to come to the conclusion that the father of the petitioner was converted to Christianism and has relinquished Hindu faith. There is nothing to suggest that the father of the petitioner or his family have been outcaste and excommunicated and that they have snapped ties with Hinduism. Conversion, if any, is only nominal and for all practical purposes the family belongs to Hindu Religion. Apart from this, the disadvantages which are peculiar to Scheduled Castes, which is sadly a feature of Hindu Religion, continues and the family faces such disadvantages and the difficulties faced by the lower castes from amongst Hindus. 10. In the matter of C.M. Arumugam v. S. Rajgopal and others, reported in (1976) 1 SCC 863 the Supreme Court has considered the question as to what is the caste and in para No. 10 of the judgment it is recorded, thus: "10. But that immediately raises the question: what is a caste? When we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian social scene. "A caste", as pointed out by the High Court of Madras in Coopoosami Chetty v. Duraisami Chteey, [ILR 33 Mad 342] "is a voluntary association of persons for certain purposes." It is a well defined yet fluctuating group of persons governed by their own rules and regulations for certain internal purposes. "A caste", as pointed out by the High Court of Madras in Coopoosami Chetty v. Duraisami Chteey, [ILR 33 Mad 342] "is a voluntary association of persons for certain purposes." It is a well defined yet fluctuating group of persons governed by their own rules and regulations for certain internal purposes. Sir H. Risley has shown in his book on People of India how castes are formed based not only on community of religion, but also on community of functions. It is also pointed out by Sankaran Nair, J. in "Muthusami v. Masilamani" [ILR 33 Mad 342]: ... a change in the occupation sometimes creates a new caste. A common occupation sometimes combines members of different castes into a distinct body which becomes a new caste. Migration to another place makes sometimes a new caste.... A caste is more a social combination than a religious group. But since, as pointed out by Rajamannar, C.J. in G. Michael v. S. Venkateswaran [ AIR 1952 Mad 474 ], ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society. But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion. It is no doubt true, and there we agree with the Madras High Court in G. Michael's case (supra) that the general rule is that conversion operates as an expulsion from the caste, or, in other words, the convert ceases to have any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by the other members of the caste as belonging to their fold. But ultimately it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism. But ultimately it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. When an argument was advanced before the Madras High Court on G. Michael's case that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who had not been converted, Rajamannar, C.J., who, it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position "that instances can be found in which in spite of conversion the caste distinctions might continue", though he treated them as exceptions to the general rule. 11. The test to determine as to whether the individual retains the old order, after conversion, it is observed in para 12 of the judgment, thus: "12. It seems that the correct test for determining this question is the one pointed out by this Court in Chatturbhuj Vithaldas Jasani v. Moreshwar Prsahram". 11. The test to determine as to whether the individual retains the old order, after conversion, it is observed in para 12 of the judgment, thus: "12. It seems that the correct test for determining this question is the one pointed out by this Court in Chatturbhuj Vithaldas Jasani v. Moreshwar Prsahram". Bose, J., speaking on behalf of the Court in this case pointed out that when a question arises whether conversion operates as a breakaway from the caste. What we have to determine are the social and political consequences of such conversion and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds. The Learned Judge then proceeded to add: Looked at from the secular point of view, there are three factors which have to be considered; (1) the reactions of the old body, (2) the intentions of the individual himself, and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or excommunicate the convert and the individual himself desires and intends to retain his old social political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body, the views of the new faith hardly matter. What is, therefore, material to consider is how the caste looks at the question of conversion. Does it outcaste or excommunicate the convert or does it still treat him as continuing within its fold despite his conversion? It the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member, notwithstanding pointed out by this Court "the views of the new faith hardly matter". This was the principle on which it was decided by the Court in Chatturbhuj Vithaldas Jasani's case (supra) that Gangaram Thaware, whose nomination as a scheduled caste candidate was rejected by the Returning Officer, continued to be a Mahar which was specified as a scheduled caste, despite his conversion to the Mahanubhav faith." 12. In the instant matter also, as stated above, there is no evidence in respect of conversion of the family to Christianity. The father of the petitioner, who is stated to have converted to Christianity has deposed during vigilance enquiry that he belongs to Mang Caste. In the instant matter also, as stated above, there is no evidence in respect of conversion of the family to Christianity. The father of the petitioner, who is stated to have converted to Christianity has deposed during vigilance enquiry that he belongs to Mang Caste. Apart from this, There is no material placed on record, nor there is any room for drawing an inference that the Petitioner or his father have adopted Christen faith and as such the disabilities and disadvantages, which are peculiar to scheduled castes have been wiped out. It is also brought on record that Mang community also accepts petitioner's family as belonging to said caste and as such there is no excommunication of family by old order. 13. In our view, the scrutiny committee has not taken note of the real issues involved in the matter and has mechanically passed order, directing invalidation of the caste certificate issued in favour of the petitioner. The judgment and order passed by the scrutiny committee, therefore, deserves to be quashed and set aside and same is accordingly quashed and set aside. Rule made absolute accordingly. No costs. It would be open for the petitioner to approach the employer for seeking reinstatement in service and it would be obligatory on the part of the employer to consider the claim of petitioner for accommodation in employment.