RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
( 1 ) wp 4791.24 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 4791 OF 2024 Avinash S/o Baburao Dahiwad,Age: 49 years, Occu: Service,R/o Vundawan Nagar,Near water tank, Shahada,Tal: Shahada, Dist. Nandurbar....PETITIONERV/s.1. The State of Maharashtra,Through its Secretary,School Education Department,Government of Maharashtra,Mantralaya, Mumbai – 32.2.The Education Officer (Primary)Zilla Parishad, Dhule.3.The Headmaster,Nagar Parishad Prathamik Shala No.06,Shirpur, Tal. Shirpur, Dist. Dhule.... RESPONDENTS…....Mr. N.N. Bhagwat, Advocate for the PetitionerMr. N.S. Tekale, AGP for the Respondent-StateMr. N.N. Desale, Advocate for the Respondent No.2Mr. D.S. Bagul, Advocate for the Respondent No.3…....CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON :12th September, 2024 PRONOUNCED ON :24th September, 2024
Legal Reasoning
( 2 ) wp 4791.24 JUDGMENT (Per: Y.G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith. With the consent of boththe sides, the matter is heard finally at the stage of admission.2.By the present Petition under Article 226 of the Constitution ofIndia, the Petitioner has prayed for issuance of Writ of Mandamus directing theRespondent No.3 to accept his application dated 5th January, 2024 and toforward proposal to the Respondent No. 2 for correction of his caste “Sonar”instead of “Lad-Sonar” in school record of his father. The Petitioner furtherprayed for issuance of directions against the Respondent No. 2 to grantsanction for correction in caste column of school leaving certificate of his fatherissued by the Respondent No.3-School run by the Respondent No. 2.3.The learned counsel appearing for the Petitioner canvassed thatthe deceased father of the Petitioner belongs to “SONAR” caste which fallsunder Other Backward Category (OBC), however, caste of the Petitioner’sfather was wrongly recorded as “Lad-Sonar” in column of caste of schoolleaving certificate issued by the Respondent No.3 - School being run by theRespondent No.2. The Competant Authority issued “SONAR” (154) castecertificate in the name of the Petitioner’s son as well as in the name of thePetitioner and “Lad-Sonar” caste is not in existence in the State ofMaharashtra. ( 3 ) wp 4791.24 4.It is further canvassed that the Municipal Corporation, Ulhasnagarissued death certificate in respect of the Petitioner's father describing caste“Sonar”. So also, “Sonar” caste is mentioned in caste column of school leavingcertificate issued by the Z.P. School, Dhadgaon Tq. Akrani Dist. Nandurbar inrespect of the Petitioner. On 28th June, 2004, the Sub-Divisional Officer Talodaissued “Sonar” caste certificate in favour of the Petitioner and on 31.03.2023,the Sub-Divisional Officer, Taloda, issued “Sonar” caste certificate in favour ofPetitioner's son namely Aditya. However, due to recording of wrong caste inschool leaving certificate of the Petitioner’s father, the Petitioner and his son arefacing difficulties. Therefore, on 05.01.2024, 06.02-.024, the Petitionersubmitted an application with the Respondent No. 3 for correction of casteentry in caste column of school leaving certificate, however, the RespondentNo. 3 has not taken any steps.5.Mr. Bhausaheb Bhikan Chavan, the Dy. Director of Education,Nashik Region filed affidavit in reply and strongly opposed the claim of thePetitioner. Mr. Tekale, the learned AGP submits that since the Petitioner prayedfor correction of caste in the school leaving certificate, therefore, it is necessaryto implead the Department of Social and Special Assistance Department asparty Respondent and the Petition is liable to be rejected on the followinggrounds: ( 4 ) wp 4791.24 i. It is not case of the Petitioner about violation of fundamental or legal right;ii. The Petition involves disputed question of facts;iii.The Petition suffers from delay and laches;iv.The corrections sought by the Petitioner does not fall within the provisions of Clause 26 of the Secondary School Code.v.The Petition suffers from non joinder of necessary parties because the petitioner prayed for correction in cast column of school leaving certificate of his father.vi.The Caste Scrutiny Committee is the Competent Authority to decide the caste claim of the Petitioner, if submitted for scrutiny.6.The learned AGP further submits that under the State list “Sonar”caste is shown at Sr. No. 154 and recognized as Other Backward Category,however, correction in the school record pertaining to caste is not permissible.The caste of the Petitioner’s father is recorded as “Lad-Sonar” in school recordin the year 1953 but since then no steps have been taken to correct the caste inschool record and after lapse of more than 50 years, the Petitioner submittedrepresentation for correction in the school record of his father, hence, prayedfor dismissal of the petition.7.Ms. Sunita Bachhav Sonawane, the In-charge Headmaster inRespondent No.3 - School filed an affidavit in reply and countered the claim ofthe Petitioner. The learned counsel appearing for the Respondent Nos. 2 & 3 ( 5 ) wp 4791.24 canvassed that the Petitioner’s father Baburao/Babulal was admitted in theRespondent No.3 - School on 9th April, 1943 and at the time of admission, casteof the Petitioner’s father was recorded as “Lad-Sonar”. However, the Petitionerfailed to produce substantial documents to show that the Petitioner’s fatherbelongs to “Hindu- Sonar”. The Petitioner’s father expired on 17th September,2000 and after lapse of more than 23 years, the Petitioner applied for change ofcaste “Hindu-Sonar” instead of “Lad-Sonar” in caste column of school leavingcertificate of the Petitioner’s father.8.In V. V. Giri V/s. Dippala Suri Dora & Ors.; AIR 1959 SC 1318, theHon’ble Supreme Court held that the Caste-status of a person in the contextwould necessarily have to be determined in the light of the recognition receivedby him from the members of the caste into which he seeks an entry.9.In Rameshbhai Dabhai Naika V/s. State Of Gujarat & Ors., (2012)3 SCC 400, the Hon’ble Supreme Court has observed thus:"27. The caste system in India is ingrained in the Indian mind. A person, inthe absence of any statutory law, would inherit his caste from his father andnot his mother even in a case of inter-caste marriage." (emphasis added) and in paragraphs 41 and 42 of the judgment as under:- "41. Determination of caste of a person is governed by the customary laws.A person under the customary Hindu law would be inheriting his caste fromhis father. In this case, it is not denied or disputed that the respondent'sfather belonged to a "Kurmi" caste. He was, therefore, not a member of theScheduled Caste. The caste of the father, therefore, will be the determinativefactor in absence of any law." ( 6 ) wp 4791.24 Here there is no reference to Valsamma but the connection is obvious. It isonly the next logical step to what was said in paragraph 31 of Valsamma. Ifas a result of inter-caste marriage the woman gets transplanted into thefamily of the husband and takes her husband's caste it would logicallyfollow that the child born from the marriage can take his/her caste onlyfrom the father. We shall presently consider the highly illogicalconsequences of this logical derivation but before that it needs to be noticedthat Sinha, J. rejected the government circular also that provided that thecaste of the mother might be taken as the caste of the child. In the sameparagraph (41) Sinha, J. observed:“ Reliance, however, has been placed upon a circular dated 3- 3-1978 said to have been issued by the State of Bihar which is inthe following terms:“Subject: Determination of the caste of a child born from a non-Scheduled Caste Hindu father and a Scheduled Caste mother.Sir, In the aforesaid subject as per instruction I have to state forthe determination of a child born from a non- Scheduled Castefather and a Scheduled Caste mother, upon deliberation it hasbeen decided that the child born from such parents will becounted in the category of Scheduled Caste. 2. In such cases before the issue of caste certificate there will bea legible enquiry by the Block Development Officer, CircleOfficer/Block Welfare Officer."42. The said circular letter has not been issued by the State in exercise of itspower under Article 162 of the Constitution of India. It is not stated thereinthat the decision has been taken by the Cabinet or any authority authorizedin this behalf in terms of Article 166(3) of the Constitution of India. It istrite that a circular letter being an administrative instruction is not a lawwithin the meaning of Article 13 of the Constitution of India. (See DwarkaNath Tewari v. State of Bihar AIR 1959 SC 249)."(emphasis added)10.The similar issue arose before the Gujarat High Court in case ofNainish Kirankumar Maheria V/s. Principal Image English School decided on ( 7 ) wp 4791.24 20th February, 2019, wherein the caste of the Petitioners were mentioned as"Hindu Rohit", however, "Hindu Maheria" was mentioned in the school leavingcertificates in favour of the Petitioners. Since, the names of the Petitionerswere mentioned as "Maheria Nainish Kirankumar" and "Maheria NishitaKirankumar" respectively and "Maheria" is the surname of the Petitioners.However, while issuing school leaving certificates, the Respondent No.1mentioned the caste of the Petitioners as "Hindu Maheria", however as statedherein-above, the caste of the Petitioners is "Hindu Rohit". Therefore, it hasbeen opined that the alternative remedy is no bar in entertaining said Petitionin the peculiar facts of the said case.11.However, in the case in hand the issue arisen is that whether theson can claim for correction in caste column of school leaving certificate of hisdeceased father after 71 years from the date of issuance of school leavingcertificate and after lapse of more than 23 years after demise of his father. Bythe present Petition, the Petitioner specifically prayed for issuance of Writ ofMandamus directing the Respondent Nos.2 & 3 for effecting change of caste“Hindu-Sonar” instead of “Lad-Sonar” in caste column of school leavingcertificate of his father issued by the Respondent No.3 - School. The Petitionerproduced school leaving certificate of his father Shri Babulal (Baburao) s/oRaghunath issued by the Respondent No. 3. ( 8 ) wp 4791.24 12.Needless to say that on 9th April, 1943, the Petitioner’s father wasadmitted in the Respondent No.3 - School vide School Register entry no. 40(Book No. 3) and his caste was shown as “Lad-Sonar” in the school leavingcertificate. The extract of General School Register maintained by theRespondent No.3 is produced on record, which specifically reflects caste of thePetitioner’s father as “Lad-Sonar”. The Petitioner’s father left the RespondentNo.3 - School on 1st May, 1953, when he was in 7th Standard and after lapse of71 years from leaving the school and after more than 23 years after the deathof the Petitioner’s father, the Petitioner for the first time applied for correction /change in caste of his father.13.It is pertinent no note that by birth, the son carries caste of hisfather. Though, the Petitioner produced Caste Certificates issued by the Sub-Divisional Officer / Executive officer in his favour as well as in favour of his sonnamely Aditya showing “Hindu-Sonar” but it does not substantiate that thefather of Petitioner or his grand-father was belonging to “Hindu-Sonar”.Nevertheless, the Petitioner has produced a certificate dated 24th July, 2024issued by Shri Lad Suvarnakar Samaj Mandal, Nandurbar, which shows that the“Lad-Sonar”, “Ahir-Sonar”, “Vaisha-Sonar”, “Gujrati-Sonar” “Marwadi-Sonar”,Kshtriya-Sonar” are sub-castes of “Sonar”. Therefore, it substantiates about ( 9 ) wp 4791.24 existence of “Lad-Sonar” caste, which certainly falls within the ambit of opencategory. Since under the State list “Sonar” caste is shown at Sr. No. 154 andrecognized as Other Backward Category, therefore, the Petitioner wanted tochange caste of his deceased father in school leaving certificate in order to takebenefits as well as for validation of caste claim of his son, which may besubmitted before the Caste Scrutiny Committee.14.It is trite proposition of law that a person can change his religionand faith but not the caste to which he belongs, as caste has linkage to birth.Therefore, it is not permissible to change the caste in school record and noprovisions of law provides for change in caste of any citizen, which is adoptedby birth through the father.15.In view of above discussion, we do not find it appropriate to issuesuch Writ of Mandamus as against the Respondent Nos. 2 & 3 for correction ofentry of caste in school leaving certificate as prayed by the Petitioner, hence,this Petition deserves to be dismissed. Therefore, the present Petition is herebydismissed. Accordingly, the Rule is discharged. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub