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2014 DIGILAW 2448 (BOM)

Shobhana Kanhyasing Tehra v. State of Maharashtra

2014-12-11

S.V.GANGAPURWALA, V.K.JADHAV

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JUDGMENT S.V. Gangapurwala, J. 1. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. The petitioner assails the judgment and order passed by the respondent No. 2/Committee thereby invalidating the Caste claim of the petitioner as belonging to "Rajput Bhamta (Vimukta Jati). 2. Mr. Talekar the learned counsel for the petitioner strenuously contends that the Committee did not consider the documents on record in its correct perspective. The Validity Certificate issued in favour of the real paternal cousin of the petitioner has been ignored. The old School record of the father of petitioner Kanhaiya Sing of the year 1941 and 1949 showing the entry of caste as "Rajput Bhamta" has been erroneously discarded. The learned counsel further submits that even the school record of the father of the petitioner of the year 1959 has been ignored only on the ground that the school is closed. This old record has high probative value. There is no reason to discard the said evidence. The old school record of the petitioner's father has been disbelieved. The old record is directed to be produced before this Court and nowhere contra entry is seen in the said record. The learned counsel submits that there is no contra evidence. The validity certificate is also issued in favour of the cousin sister of the petitioner, thereby validating the caste certificate as belonging to "Rajput Bhamta". The learned counsel further submits that the genealogy has been proved. The affidavits are filed on record which substantiate the case put forth by the petitioner. According to the learned counsel there is no case of fraud. Thus the school record in respect of the petitioner is discarded, only on the ground that there is overwriting over the word "Bhamta". It is not a case of fraud. The same would be of no avail. The learned Counsel relies on the judgment of the Apex Court in the case of Sayanna v. State of Maharashtra and ors., reported in (2009) 10 SCC 268 . According to the learned counsel even in the home inquiry all the facts are correctly stated. According to the learned counsel the petitioner has proved his case by preponderance of probabilities. The learned counsel relies on the judgment of this Court in the case of Umraosingh Jaisingh Chamargore v. Dean, Medical college, Aurangabad and ors., reported in 1999 (1) Bom. C.R. 810. According to the learned counsel the petitioner has proved his case by preponderance of probabilities. The learned counsel relies on the judgment of this Court in the case of Umraosingh Jaisingh Chamargore v. Dean, Medical college, Aurangabad and ors., reported in 1999 (1) Bom. C.R. 810. The learned counsel further submits that the cousin of the petitioner had filed writ petition challenging the judgment of the Scrutiny Committee invalidating his caste claim. This Court allowed the said Writ Petition and directed the Committee to issue Validity Certificate in his favour as belonging to "Rajput Bhamta". In the said proceedings the record of the father of present petitioner was relied. 3. Mr. Dighe, the Assistant Government Pleader submits that, the committee has considered all the relevant aspects of the matter in its correct perspective and thereby has arrived at plausible conclusion. No fault can be found in the finding of the committee in invalidating the claim of the petitioner. The reliance placed on the school record of the petitioner's paternal uncle by the petitioner is misplaced. Original school record was called and inspected by the committee and it was found that in the school record of the cousin of the petitioner namely Rameshsing the admission is shown at serial No. 732, whereas in the certificate issued, it is shown as Sr. No. 39. Initially in the column of caste "Rajput" is shown and the word "Bhamta" is inserted subsequently. The said evidence goes against the petitioner. The genealogy is not proved. The evidence in respect of the cousin i.e. Swati Satyanarayan cannot be considered as said Swati is not related by blood. The other evidence is of recent origin as such is rightly discarded. 4. Considered the arguments canvassed by the learned counsel for respective parties. The petitioner has to prove his case by preponderance of probabilities. This Court had called for the original school record in W.P. No. 9959/2012 i.e. in case of issuance of validity certificate in favour of real cousin of petitioner, that is the admission register maintained by Gandhi Rashtriya Hindi Vidyalaya, of Kanhayyasing Govindsing Tehra i.e. of the father of the petitioner. It was observed that the said record is more than 55 year old and column 6, 7 and 8 are almost torn. Nothing is legible or seen in the same. The same is not useful to arrive at the conclusion. 5. It was observed that the said record is more than 55 year old and column 6, 7 and 8 are almost torn. Nothing is legible or seen in the same. The same is not useful to arrive at the conclusion. 5. There is no specific finding of the committee that the certificate of the father and uncle wherein it is shown that admission is taken on 14th June, 1959 and there caste is recorded as "Rajput Bhamta" is shrouded with suspicion. The same is not considered only on the ground that the said school is subsequently closed in the year 1985. There was no reason to disbelieve the said certificate only because the said certificate could not be counter checked, as the school is closed. It ought not have been totally disbelieved. The said certificate could have been considered along with other evidence. In respect of the extract of the school in respect of the petitioner himself, the same is of the year 1970 wherein the caste is shown as "Hindu Rajput Bhamta". It is nobodies case that fraud has been played while obtaining the said certificate. Even the validity certificate has been issued in favour of the paternal cousin of the petitioner and the cousin sister of the petitioner. The same would also be a corroborative piece of evidence. Considering the other evidence, the old record will have more probative value. The old record is prior to 1960 i.e. of the petitioner's father and the petitioner's paternal uncle as belonging to "Rajput Bhamta". Even the first page of the service book, of the petitioner's cousin uncle Rameshsing shows the caste as "Rajput Bhamta". Considering all the aforesaid evidence on record and the fact that there is no other contra evidence, the petitioner has established his case by preponderance of probabilities as belonging to "Rajput Bhamta (Vimukta Jati). 6. In view of the above, the impugned judgment and order is quashed and set aside. The respondent No. 2 committee shall issue the validity certificate in favour of petitioner as belonging to "Rajput Bhamta" (Vimukta Jati). In case, the internship completion certificate and degree certificate and other original document are withheld on the ground that the caste claim is invalidated, then the respondent No. 4 and 5 shall issue the same. 7. Rule accordingly made absolute in above terms. However with no order as to cost. In case, the internship completion certificate and degree certificate and other original document are withheld on the ground that the caste claim is invalidated, then the respondent No. 4 and 5 shall issue the same. 7. Rule accordingly made absolute in above terms. However with no order as to cost. Original record is returned back to learned Government Pleader.