State Of Bihar v. Kumari Abha — 1998 DIGILAW 905 (PAT)

Judgment 1. This appeal has been filed against the judgment dated 18.6.1997 passed in CW.J.C. No. 3928 of 1996 (R) by a learned Single Judge of this Court, whereby he has quashed the order dated 18.10.1996, issued by the Deputy Secretary, Health, Medicine, Education and Family Welfare Department, Government of Bihar, Patna (respondent No. 3 to the writ petition) by which a direction was issued to the Principal, M.G.M. Medical College, Jamshedpur (respondent No. 4 to the writ petition) to cancel the admission of the petitioner respondent in MBBS Courses of 1993-95 sessions. While admitting the appeal, this Court issued notice to the respondents, including the petitioner-respondent Kumari Abha to show cause as to why the stay be not granted in this case. On 17.12.1998, an application under Sec. 151 C.P.C. has been filed on behalf of the petitioner-respondent for permission to allow her to appear in final MBBS Part II Examination scheduled to be held on 2.1.1989. The said petition was placed on 23.12.1998 and with the consent of the learned Counsel for the parties the stay matter and the said application were ordered to be placed today for final disposal. 2. The facts necessary for disposal of the present matter, which are not in dispute, are that the petitioner-respondent Kumari Abha was born from the wed lock of Ram Lakhan Singh and Chandrakanta Devi in village Oknama, P.S. Deepnagar, District Nalanda, belonging to Kurmi Caste (OBC). Ram Lakhan Singh is at present working as the Superintending Engineer. She is married to Dr. Shambhu Prasad Singh of Kurmi Caste, who is presently posted as the Medical Officer in Bihar Health Service. The case of the writ petitioner, i.e., the sole respondent in this appeal, is that during her childhood she was adopted by a Scheduled Caste Ramdin Ram and his wife Anreji Devi in the year 1973 and an unregistered document being a deed of adoption was also executed in this regard in 1978. Thus by virtue of her adoption she became a Scheduled Castes candidate and is entitled to the benefit of reservation in the matter of admission. She applied for her admission in medical courses for the sessions 1993-95 and showed herself as a Scheduled Caste candidate. She passed the entrance examination and was selected for admission. She was admitted as a Scheduled Caste/reserved candidate. She applied for her admission in medical courses for the sessions 1993-95 and showed herself as a Scheduled Caste candidate. She passed the entrance examination and was selected for admission. She was admitted as a Scheduled Caste/reserved candidate. Certain complaints were received that the petitioner-respondent has obtained the admission by playing fraud. Thereafter, an enquiry was conducted, on the basis of which a show cause notice issued to her and after consideration of the matter, the order dated 18.10.1996, which was challenged in the writ petition, was issued for cancellation of her admission. 3. The stand of the respondents-appellants, i.e. the State authorities, was that her claim of being adopted in the family of Scheduled Caste was false one. The Sada document of adoption is created one. The enquiry report made at the instance of the State Government from the officers of Nalanda and Ranchi clearly shows that she was never adopted by Ramadin Ram and his wife Anreji Devi. The further stand of the State is that in any view of the matter, even if the adoption is accepted for the sake of argument, by virtue of adoption, the petitioner-respondent who was born in backward caste, cannot be treated as a Scheduled Caste candidate. 4. For the purpose of disposal of the present matter, we do not want to give a definite finding with regard to the merit of the case, as the same would prejudice the case of either of the parties at the time of final disposal of the appeal. We are making observation in this order for the purpose of only passing an interim order. 5. The facts which are not in dispute, are that the petitioner-respondent Kumari Abha was born in Kurmi caste. She claims that she was adopted by Ramdin Ram, member of Scheduled Caste, and thus after adoption she became a Scheduled Caste and is, therefore, entitled to the benefit of the said category and she stated in relevant form that she is a Scheduled Caste and on that basis she has been admitted. 6. From perusal of various reports, which were referred to by the learned Counsel for the parties, it appears that some reports support the stand of the petitioner-respondent and some reports support the stand of the State. 6. From perusal of various reports, which were referred to by the learned Counsel for the parties, it appears that some reports support the stand of the petitioner-respondent and some reports support the stand of the State. Without going into the question as to whether there was adoption or not, for the purpose of disposal of the present matter, we proceed on the assumption that there was an adoption as claimed by the petitioner-respondent. The question is as to whether on the basis of such adoption she is entitled to claim the benefit of reservation as a Scheduled Caste candidate in terms of the constitutional provisions. The Apex Court in Valsamma Paul V/s. Cochin University and Ors. -- held that when any forward caste candidate is transplanted in backward caste by adoption or marriage or conversion he does not become entitled for the benefit of reservation either under Articles 15(4) or 16(4) as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution. Same view has been reiterated by the Apex Court in State of Tripura and Ors. V/s. Narnita Majumdar -- . Thus it is settled that by virtue of marriage and adoption a candidate of other category cannot become a Scheduled Caste or Scheduled Tribe candidate and at this stage we would like to mention that it is not the case of the petitioner-respondent that she could have been admitted as a Backward Category candidate, even if her case as a Scheduled Caste candidate would have been found to be impermissible. 7. Learned Counsel appearing for the respondent-Kumari Abha submitted that once she was admitted and appeared in the previous examinations, Part I etc., and her candidature was not cancelled initially, at this stage the State cannot be allowed to cancel the examination and in support of the said submission he relied upon the judgment of the Apex Court in Shri Krishan V/s. The Kurukshetra University Kurukshetra MR 1976 SC 376. He also relied upon a Division Bench Judgment of this Court in Amresh Kumar V/s. Principal Bhagalpur Medical College Bhagalpur. He also relied upon a Division Bench Judgment of this Court in Amresh Kumar V/s. Principal Bhagalpur Medical College Bhagalpur. 1982 BBCJ 302 , wherein also this Court having noticed the fact that the petitioner of that case has been allowed to continue the study in medical courses, his candidature cannot be withdrawn. We are unable to agree with the aforesaid submission. In the case of Shri Krishan (supra) inspite of the shortage of his percentage in Part I, he was allowed to appear in Parts I and II examinations and in that context the Apex Court held that it was the duty of the University to scrutinize the admission form filed by the students in order to find out whether it was in order or not and the authorities having failed to scrutinize the same and allowed the candidate to appear in the examinations, the question of fraud did not arise and accordingly quashed the order cancelling the candidature of the petitioner of that case. In this case, the situation is quite different. The petitioner in this case made a representation that she is a scheduled caste candidate and on that basis she was admitted and when the authorities came to know about the fraud they make enquiry and passed the order cancelling his admission. Thus on the basis of the representation made by the petitioner-respondent she was admitted and if ultimately it is found that she played a fraud upon the authorities then that will vitiate the subsequent acts based on the aforesaid fraud for the simple reason that the fraud vitiates every thing including the solemn proceedings of the Court. So far as Amresh Kumars case (supra), is concerned, this Court did not interfere with the cancellation of admission on the ground that the authorities have acquiescence in the admission. Here in this case as stated above, once the matter was brought to the notice of the authorities they promptly acted and issued show cause notice and after issuance of the show cause they passed the aforesaid order. Prima facie the submissions advanced on behalf of the petitioner-respondent are not acceptable. 8. No doubt the petitioner-respondent has been admitted and appeared in the examinations previously we are of the view that the appellants have made out a strong case for grant of stay in this case. Prima facie the submissions advanced on behalf of the petitioner-respondent are not acceptable. 8. No doubt the petitioner-respondent has been admitted and appeared in the examinations previously we are of the view that the appellants have made out a strong case for grant of stay in this case. Accordingly, we are inclined to stay the operation of the order passed by the learned Single Judge and as such the said order passed by the learned Single Judge impugned in this appeal is stayed. In the facts and circumstances of the case, we are not inclined to allow the prayer of the writ petitioner-respondent Kumari Abha to appear in the ensuing examination commencing from 2.1.1999. 9. With the aforesaid observation and direction, the stay matter as well as the application filed by the petitioner-respondent stand disposed of. 10. As the matter pertains to admissions in the Medical College, we are of the view that it will be open for either of the parties to approach before the appropriate Bench for fixation of an early date of hearing.