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1997 DIGILAW 431 (PAT)

Sunil Kumar v. State of Bihar

1997-05-21

ASOK KUMAR GANGULY

body1997
JUDGMENT A.K. Ganguly, J. This writ petition has been filed impugning the order dated 24.7.1996 passed by the Deputy Secretary to the Government of Bihar, Health, Medical Education and Family Welfare Department, Patna. In the impugned order it has been stated that in the light of order passed by this Court in C.W.J.C. No. 8466 of 1991, in the matter of Ram Chandra Singh and others vs. The State of Bihar and others, the posting of the petitioner as Registrar, General Surgery Department, P.M.C.H., Patna is cancelled. It was also stated in the impugned order that consequent upon the aforesaid order, Dr. Jainendra Kumar, who is at Serial No. 5 of 1992 panel of Registrar, General Surgery and is presently posted as Registrar, General Surgery, Anugrah Narayan Magadh Medical College, Gaya is posted as Registrar, General Surgery, P.M.C.H., Patna on account of the vacancy created due to the cancellation of the posting of the petitioner. 2. In this writ petition various applications by the Intervenors have been filed and the same having been allowed, the intervenors have also been heard at the time of final hearing. 3. Various questions have been agitated in this writ petition but for the purpose of disposal of the real controversy between the parties, this Court is of the view that the following points have to be considered by this Court. 4. On a perusal of the impugned order it appears that the impugned order has been passed in view of the order of this court passed in C.W.J.C. No. 8466 of 1991 wherein a Division Bench of this Court by an order dated 15.7.1993 quashed the notification being Annexures 7 and 8 inasmuch as it was conceded by the learned counsel for the State that in view of the Central Government Order dated 25.2.1992, the impugned notification at Annexures 7 and 8 to that writ petition cannot be sustained. By the impugned notification which was quashed by the said judgment dated 15.7.1993, the facilities available to Gond as a member of the Scheduled Tribes in the State of Bihar was extended to other two communities, namely, Gaur and Gonr. In fact after the said notification which has issued by the State Government, the Central Government issued notification dated 25.2.1992 on the subject of extension of Scheduled Tribes benefit to Gour and Gonr communities of the State of Bihar. In fact after the said notification which has issued by the State Government, the Central Government issued notification dated 25.2.1992 on the subject of extension of Scheduled Tribes benefit to Gour and Gonr communities of the State of Bihar. In the said notification made by the Central Government it was stated that the matters regarding extension of Scheduled Tribes benefit to Gonr and Gour communities have been examined in consultation with the Office of the Registrar General of India and the Ministry of Law and Justice and was found that Gour/Gonr and Gond are two distinct communities and the resolution dated 25.2.1991 of the State Government was also not constitutionally valid, as any amendment in the existing list of Scheduled Caste and Scheduled Tribes can only be done through an Act of Parliament in view of the provisions made under Clause (2) of Article 312 of the Constitution. As such the Central Government made a request to the State Government to withdraw the said notification immediately. In terms of the said order of the Central Government, a Division Bench of this Court in the aforesaid writ petition quashed the State Government notification dated 25.2.1991. The upshot of the said judgment is that the facilities which are available to Gond cannot be extended to Gour and Gonr communities. The impugned order giving effect to the said judgment in purporting to cancel the posting of the petitioner has preceded on the basis of a peculiar logic. The impugned order precedes on the basis that the appointment of the petitioner to the post of Registrar, General Surgery Department, P.M.C.H., Patna has been given to him in view of the benefit of reservation of the basis of his Gond caste. Therefore, if the petitioner has given that post on the basis of his belonging to Gond caste the same cannot be disturbed in view of the Division Bench judgment of this Court. 5. The Division Bench has quashed the notification which extended the benefits available to Gond caste to the members of Gour/Gonr caste but the petitioner has not been given the benefit of posting as a member of Gour and Gonr caste. The impugned order recites that the petitioner has been given the benefit of posting as he belongs to Gond caste. So the Division Bench judgment cannot affect his posting. The impugned order recites that the petitioner has been given the benefit of posting as he belongs to Gond caste. So the Division Bench judgment cannot affect his posting. Therefore, on the plain reasoning which is indicated in the impugned order, the impugned order cannot be sustained. 6. The learned Advocate General appearing on behalf of the respondents, however, has raised a factual dispute that the petitioner does not belong to Gond community. It is also controverted that Gond community is not in the list of Scheduled Caste in the whole of Bihar and in support of this argument various factual disputes have been raised and various documents have been filed. The petitioner also in order to establish himself to be the member of Gond caste has annexed various documents. Learned counsel for the Intervenor respondent No. 6 has also disputed the fact that the petitioner belongs to Gond community. Learned Advocate General has rightly urged that the decision on the question whether the petitioner belongs to Gond caste or not is a decision involving disputed question of fact and the writ Court is not a proper forum for the said decision. On this aspect various decisions have been cited. 7. This Court is aware of the fact that the writ Court is not a proper forum to decide this question which is essentially a question of fact whether the petitioner is a member of Gond caste or not and this Court does not go into this question but strictly speaking. this dispute need not be answered by a question in view of the fact that the impugned order proceeds on the basis that the petitioner belongs to Gond caste In that view of the matter, this Court refrains from making any decision in view of the circumspect nature of the jurisdiction whether the petitioner belongs to Gond community or not. This Court, on the other hand holds that the decision on the said dispute is rather un-called for. 8. This Court, on the other hand holds that the decision on the said dispute is rather un-called for. 8. This Court, however, notices one fact that there is a communication from the District Magistrate, Siwan to the Secretary (Home), Government of Bihar, Patna to the effect that the caste of the petitioner was enquired into by the then District Welfare Officer, Siwan and the same was also enquired in respect of Sri Ajit Kumar and the enquiring Officer opined that the petitioner belongs to Gond community which has been recoghised as Scheduled Tribes. Photo copies of both the reports and deeds have been enclosed for necessary action at the end of the Secretary (Home), Government of Bihar, Patna and the enquiry report of the Anchal Adhikari was also annexed with the said communication. The said communication is dated 31.12.1996. Since the enquiry by the appropriate authority discloses that the petitioner belongs to Gond community, it is difficult for this Court sitting in writ jurisdiction to go behind the said communication and take upon itself the enquiry whether the petitioner belongs to Gond community or not. 9. The next question which falls for consideration is whether the Gond community is a Scheduled Tribes community in the State of Bihar. In this connection the petitioner referred to the provisions of Article 342 of the Constitution of India which are set out below: Scheduled Tribes. - (1) The President may with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) Parliament may be law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any Tribe or Tribal community or part of or group within any Tribe or Tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." 10. Reference in this connection may be made to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. From the said Act it appears that in the State of Bihar Gond is a Scheduled Caste community. Reference in this connection may be made to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. From the said Act it appears that in the State of Bihar Gond is a Scheduled Caste community. The same has been disclosed as Annexure-15 by the petitioner to its reply to the counter affidavit filed by the State. Apart from that, learned counsel for the petitioner also produced before this Court a notification dated 6.9.1950 and the Schedule of the Scheduled Castes and Scheduled Tribes Orders, 1950. In the said notification which has been issued in exercise of the power under Article 342 of the Constitution, it has been stated that throughout the State of Bihar Gond is a Scheduled Tribe community. 11. In view of these overwhelming materials, this Court is of the view that there is no doubt that Gond is a Scheduled Tribe community within the State of Bihar under the provisions of Article 342 of the Constitution of India. 12. The next question which has been debated before me is whether the principles of reservation apply in the matters of posting in the department of Health. The principles of reservation is based on the constitutional provision of Article 16(4) of the Constitution. Under the said Sub-Article (4) and (4-A) there is provision for reservation in the matters of appointment or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the service under the State. Article 16(4-A) of the Constitution applies in the matters of promotion to a class of person but those provisions cannot relate to the matters of posting. It may be open to the State Government to decide in the matters of appointment and promotion that there should be adequate representation of any Backward Class of citizens who are properly represented but the said principle cannot be extended to the matters of posting. In the instant case the respondents have repeatedly urged including the learned Advocate General appearing for the State that in the matters of posting the principle of reservation cannot be extended. 13. Learned counsel for respondent nos. 5 and 7 have drawn the attention of this Court to certain circulars dated 7.8.1978 and 31.1.1986 in order to show that in the matters of posting there cannot be any question of reservation. 13. Learned counsel for respondent nos. 5 and 7 have drawn the attention of this Court to certain circulars dated 7.8.1978 and 31.1.1986 in order to show that in the matters of posting there cannot be any question of reservation. Therefore, the said stand of the respondents is quite in consonance with Article 16(4) and 16 (4-A) of the Constitution of India. Learned counsel for the petitioner has, however, stated that in the matters of posting also the provisions of reservation can be extended and in support of his submission, he has relied upon a decision of this Court in the case of Dr. Sudhir Kumar Thakur & Others vs. State of Bihar & others reported in 1996(1) PLJR page 210. From a perusal of the said judgment in Dr. Sudhir Kumar Thakur (supra) it appears that the said judgment has laid down the proposition which is contrary to the arguments advanced by the learned counsel for the petitioner. This is clear from paragraphs 10 and 11 of the said judgment. The relevant portion of paragraph 11 of the said judgment is quoted below: "I am inclined to hold that the posting in the teaching wing of the Bihar Health Services to the post of Registrar/Tutor/Assistant Professor by making selection from amongst eligible members of the Bihar Health Services is a case of promotion to higher grade and is not made by direct recruitment. That being so, there can be no reservation for the members of the other Backward Classes (namely, extremely Backward Classes, Backward Classes and Women Backward Classes) in the posts of Registrar/Assistant & Professor/or Tutor of the Medical Colleges." 14. Learned counsel for respondent no. 7 has drawn the attention of the Court to another judgment of this Court in the case of Dr. (Mrs.) Ranjana Sinha vs. The State of Bihar & Others reported in 1996 B.B.C.J., page 631: 1996 (2) PLJR 638. From a perusal of the observation made in the said judgment it appears that such posting should be made according to merit-cum-choice. On the question of posting, the principle of reservation is not attracted. That is also the stand taken by the learned Advocate General. 15. Therefore, taking all these facts into consideration this Court is of the view that the impugned order which is at Annexure-1 cannot be sustained in view of the improper reasoning given in the same. On the question of posting, the principle of reservation is not attracted. That is also the stand taken by the learned Advocate General. 15. Therefore, taking all these facts into consideration this Court is of the view that the impugned order which is at Annexure-1 cannot be sustained in view of the improper reasoning given in the same. In that view of the matter, the impugned order is quashed but this will not automatically revive the posting of the petitioner as Registrar, General Surgery Department, P.M.C.H., Patna inasmuch as in the matters of such posting the principles of reservation cannot be attracted. This Court, therefore, direct respondent no. 1 and/or its Sub-ordinate Officers to consider the case of all eligible candidates as mentioned in Armexure-2 to the writ petition for appointment to the post of Registrar, General Surgery Department, P.M.C.H. Patna on the basis of merit-cum-choice and in view of the latest merit list which is made Annexure-2 to the writ petition. Such decision may be taken by the respondents as early as possible and preferably within a period of four weeks from the date of receipt/communication of a copy of this order. 16. With the above observation/direction, this writ petition is allowed to the extent indicated above. There will be no order as to cost.