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2001 DIGILAW 880 (PAT)

Vimal Prasad v. State Of Bihar

2001-09-18

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. These two writ petitions on behalf of the same petitioner and with respect to the same dispute have been heard together and are disposed of by this common judgment. 2. C.W.J.C. No. 9946/98 has been filed for quashing a notice, dated 7-11-98, by the Principal, S.K. Medical College Muzaffarnagar (hereinafter called the College) calling upon the petitioner to furnish required information pursuant to letter No. 1433/ 98 dated 18-9-98 failing which his rotating Internship may be terminated. Copy of the notice has been enclosed as Annexure-10 to the petition. C.W.J.C. No. 844/2001 has been filed for quashing the order of the Principal of the College dated 12-2-2001 cancelling admission of the petitioner to the MBBS course with immediate effect. Copy of the order has been enclosed as Annexure 1 to the petition. It has also been filed as Annexure 13 to IA No. 3177/2000 (in C.W.J.C. No. 9946/98). 3. The case of the petitioner is as follows. The petitioner is a resident of village Pongura in Ranchi district. He belongs to Kisan community, a Scheduled tribe, though the title (or surname?) of the family is Manjhi because the ancestor Banmali Manjhi was rscorded as Manjhi in the Record of Rights in 1930. He appeared at the Medical and Dental Admission Test (MDAT) 1989 and was selected for admission. On 4-4-90 he was admitted to the 1st MBBS course in S.K. Medical College, Muzaffarpur in the Session 1989-90. At the time of admission, he had produced caste certificated issued by the District Welfare Officer, Ranchi under his Memo No. 52/89 dated 23-6-1989 and a similar certificate issued by the Deputy Commissioners Executive Magistrate, Ranchi under Memo No. 1784 dated 7-9-1989. He completed the 1st MBBS course, but was prevented from filling, up the examination form which was to commence on 4-4-91, in view of letter No. 2171 (4) dated 13-11-90 by the Scheduled Castes, Scheduled Tribes and Paharia Welfare Committee of the Bihar Legislative Council. On 30-5-91 his admission was cancelled and he was expelled from the College. He filed CWJC No. 4776/92. By order dated 13-8-93 said impugned order was quashed with a direction to the District Welfare Officer, Ranchi to make an enquiry in respect of the caste of the petitioner. On 2-3-94 the District Welfare Officer, Ranchi informed the Principal of the College that the petitioner belongs to Kisan community. He filed CWJC No. 4776/92. By order dated 13-8-93 said impugned order was quashed with a direction to the District Welfare Officer, Ranchi to make an enquiry in respect of the caste of the petitioner. On 2-3-94 the District Welfare Officer, Ranchi informed the Principal of the College that the petitioner belongs to Kisan community. The petitioner was thus allowed to continue and complete MBBS course which he passed in 1997-98. On 7-4-98 he was also granted provisional registration by the Bihar Council of Medical Registration. Meanwhile posts of Civil Assistant Surgeon in the Bihar Health Service were adveristed by the Bihar Public Service Commission. The petitioner applied for return of the certificates from the College authorities. At this stage, on 18-8-98 he was asked as to the steps he had taken in CWJC No. 4776/92. On 9-10-98 the petitioner replied stating that the District Welfare Officer, Ranchi had already sent report on 2-3-94. He enclosed photo copy of the said report with the reply. On 7-11-98 another communication (impugned in CWJC No. 9946/98, as indicated at the outset) was issued to furnish information failing which his Internship may be terminated. On 12-2-2000 the admission was cancelling giving rise to the second writ petition i.e. CWJC No. 844/200i. 4. Counter affidavit have been filed on behalf of both the College and the Department of Health, Medical Education and Family Welfare (in short, Health Department). The substance of their case is that soon after the petitioner was admitted to the MBBS course on 4-4-90, a letter was received from the Deputy Secretary, Bihar Legislative Council on or about 3-11-90 stating that the petitioner belongs to Sharawat caste which was not a Scheduled Tribe. On 20-11-90 the Principal wrote to the District Welfare Officer, Ranchi and Deputy Collector-cum-Executive Magistrate, Ranchi seeking clarification. On 5-12-90 the Deputy Collector-cum-Executive Magistrate informed the Principal that he had asked the petitioner to appear before him for enquiry. On 27-4-90 the Additional Commissioner of the Health Department also informed the Principal that the petitioner had secured admission on the basis of false caste certificate and action should be taken to remove him from the College. On 3-5-91 notice was issued to the petitioner to submit an explanation. Also, a written report was sent to the Officer Incharge, Ahiyapur PS (Muzaffarpur). On 3-5-91 notice was issued to the petitioner to submit an explanation. Also, a written report was sent to the Officer Incharge, Ahiyapur PS (Muzaffarpur). On 4-5-91, letter was also received from the SC/ST Pahariya Welfare Committee of the Legislative Council to the effect that the petitioner was not a Scheduled Tribe. On 30-5-91 accordingly petitioners admissioR was cancelled and he was expelled from the College. The petitioner was however, allowed to attend classes provisionally pursuant to the order of this Court dated 13-8-93 in CWJC No. 4776/92. On 1-2-94 the College communicated the Courts order to the District Welfare Officer, Ranchi with a request to send enquiry report. Dr. D.K. Sinha, Incharge Students Welfare of the College was also deputed to Ranchi. He submitted report (date not disclosed) stating that he was not satisfied with the report of the District Welfare Officer dated 2-3-94. On 24-10-98 communication was received from the Health Department seeking detailed information regarding the petitioner. On 7-11-98 the College sent reply stating that the petitioner had been allowed to attend classes in the 1992-93 Session and also allowed to appear at the examination on his undertaking that he will abide by the order of the High Court. There was no information regarding any decision of the High Court. Information had been sought from the petitioner on 18-9-1998. Meanwhile the petitioner had passed the final year MBBS examination and also got provisional registration from the Bihar Council of Medical Registration, presently he was doing rotating Internship. After stating these facts, the Principal solicited instruction from the Department. On 8-2-90 direction was issued by the Health Department to cancel the admission. On 12-2-2000 admission was accordingly cancelled. The Government was informed about the cancellation on 16-2-2000. 5. Shri Dhirendra Kumar, learned Counsel for the petitioner, submitted that from the report of the District Welfare Officer, Ranchi dated 2-3-94 read with the caste certificate dated 11 -4-90 (Annexure 4 and 1 /A in CWJC No. 844/2001) it is clear that the petitioner belongs to Kisan Community, a Scheduled Tribe, and has admission in the Scheduled Tribe category, therefore, cannot be said to be illegal. In any case, the petitioner having been allowed by the authorities to complete the MBBS course which he passed in course of time, and this Court in CWJC No. 9946/98 having also allowed him to complete the Internship, his admission to the MBBS course could not be cancelled when he was on the verge of appointment on the post of Civil Assistant Surgeon. In support of the plea he placed reliance on ShriKrishan V/s. The Kurukshetra University -- , Amresh Kumarv. Principal, Bhagalpur Medical College, AlR 1982 Patna 122 and Harphool Singh V/s. State of Rajasthan A.I.R. 1981 Rajasthan. He also referred to M/s Motilal Padampat Sugar Mills Co. Ltd.v. The State of Uttar Pradesh -- . 6. Shri Azfar Hassan on behalf of the respondents submitted that there are two aspects of the case, whether the caste certificates on the basis of which the petitioner was submitted is genuine and if not, whether the Court should allow the petitioner to reap the benefit of his fraud in securing admission on the basis of a false caste certificates. Fraud, Counsel submitted, vitiates all transactions and no person can be allowed to benefit from his own fraud, specially in writ jurisdiction. Counsel pointed out that unlike the cases relied upon by the petitioner, admission in the instant case was cancelled at the initial stage in 1991 itself which was set aside by this Court on a technical ground that the District Welfare Officer being competent to grant caste certificate in terms of the Prospectus, the Principal of the College was not competent to cancel the admission. The Court accordingly, directed the District Welfare Officer, Ranchi to make an enquiry in respect of the petitioners case. The petitioner produced the caste certificate purportedly sent by the District Welfare Officer, Ranchi and District Welfare Officer, Ranchi which has been found to be fake and fabricated vide letters of the Deputy Commissioner, Ranchi vide communication contained in Annexures A and B to the counter-affidavit mentioning that the letter under reference (letter dated 2-3-94 Annexure 4 in CWJC No. 9946/98) has not been issued from the office of the District Welfare Officer, Ranchi. This according to the Counsel was second fraud committed by the petitioner. This according to the Counsel was second fraud committed by the petitioner. In this connection, he pointed out that earlier, pursuant to the show-cause notice issued to him the petitioner had declared his caste as Manjhi, he changed his stand apparently because Manjhi is not a scheduled tribe. In support of the contention reliance was placed on State of Tamil Naduv. A. Gurusamy A.I.R. 1997 SC 1199. 7. The dispute relating to ones caste involves questions of fact, which cannot be determined without taking evidence and as such I do not propose to go into this aspect of the case in a full-fledged manner. Nonetheless, on the materials on record I have no difficulty in holding that the petitioner has failed to prove his case of being Kisan by caste. Burden of proof certainly lay on him which he has failed to discharge. In the writ petition, in CWJC No. 9946/98, he has referred to two caste certificates, one issued by the District Welfare Officer, Ranchi contained in Memo No. 52/89 dated 23-3-89 and the other issued by the Deputy Collector and Executive Magistrate, Ranchi under Memo No. 1784 dated 7-6-89, but the one he has brought on record as Annexurei/A in CWJC No. 844/2001 is dated 11-4-90. The so-called report/letter of the District Welfare Officer dated 2-3-94 has been found to be fake, never to have been issued from the office of the District Welfare Officer, Ranchi and there cannot be any reason to disbelieve the correctness of the said communication of the Deputy Commissioner, and the Welfare Officer, Ranchi, Annexures A and B to the counter-affidavit in that regard. I, therefore, proceed on the assumption that the petitioner does not being to Kisan community. 8. It is well settled that a person can claim benefit as a Scheduled Caste or Scheduled Tribe in admission to educational institutions or employment under the State only if his caste/tribe has been included in the lists of Scheduled Caste or Scheduled Tribes in terms of Articles 341 or 342 of the Constitution. Kisan is one of the tribes included in the list of Scheduled Tribes in the State of Bihar. Unless the petitioner establishes that he belongs to Kisan or any other community/tribe included in the said list he cannot claim benefit of any reservation available for the Scheduled Tribes. Kisan is one of the tribes included in the list of Scheduled Tribes in the State of Bihar. Unless the petitioner establishes that he belongs to Kisan or any other community/tribe included in the said list he cannot claim benefit of any reservation available for the Scheduled Tribes. Thus the petitioner having failed to prove that he belongs to Kisan community, as claimed by him, irresistible conclusion would be that his admission to the MBBS course in the Scheduled Tribe category was illegal. 9. The question which however arises for consideration, and which is the real question in this case, is whether this Court should uphold the impugned order cancelling the petitioners admission, to the MBBS course at this stage. Though having regard to the conduct of the petitioner verging on fraud if not fraudulent, my initial reaction was adverse, but on deeper consideration, I have come to the conclusion that the case of the petitioner is covered by the ratio of the decisions referred to above. 10. It is true that the petitioner having secured admission on the basis of false caste certificate he cannot claim any right in equity. It is also that the admission of the petitioner was cancelled at an early stage unlike the cases of Amresh Kumar (supra) and Harphool Singh (supra) relied upon by the Counsel for the petitioner. But from the narration of facts in the foregoing paragraphs it is evident that after this Court quashed the order of cancellation of admission on 13-8-93 in CWJC No. 4776/ 92 precious too tittle was done by the respondents in the matter. The College did send letter to the District Welfare Officer, Ranchi on 1-2-94 and deputed Dr. D.K. Sinha to Ranchi in connection with enquiry. Nothing seems to have been done at all thereafter. The fact that Dr. D.K. Sinha submitted report (date not disclosed) to the effect that he was not satisfied with the enquiry report of the District Welfare Officer dated 2-3-94 (vide para 13 of the counter-affidavit in CWJC No. 9948/98) suggests that the respondents were aware of the said report/letter of the District Welfare Officer, and apparently believing the same to be correct allowed the petitioner to prosecute his studies for four years thereafter, during which he not only completed the course but also passed the Final examination. It may be mentioned here that the petitioner was originally admitted to the 1st MBBS course in 1989-90 Session but after the same was cancelled and cancellation was set aside by this Court he was allowed to attend the classes in the Session 1992-93 and further allowed to appear at the examination. The plea taken in the letter of the Principal dated 7-11 -98 in response to the Health Department query dated 24-10-98, referred to above, that no information about the High Courts order had been received, and the Principals query from the petitioner about the result of CWJC No, 4776/92 only shows that after this Court set aside cancellation order the respondents did nothing to pursue the matter, rather by allowing the petitioner to prosecute the course and appear at the examination they would be deemed to have acquiesced in the petitioners candidature. The cancellation of his admission at this stage would have the effect of wiping out not only the admission but also the result of the examination, qualification which the petitioner has acquired in the meantime. 11. In the case ofAmresh Kumar (supra) the petitioner was admitted to the MBBS course in 1975 on the basis of caste certificate showing him to be Dhobi by caste. In 1979 the admission was cancelled on the ground that he was actually not Dhobi and belonged to upper caste. A Division Bench of this Court held that cancellation of admission would lead to ridiculous situation, too harsh and not commensurate with the fault, if any, committed by the petitioner, for though had he passed the MBBS examination successfully he will stand relegated as I. Sc. pass candidate. Following the decision in Harphool Singhs case (supra) the Court further held that the conduct of the authorities amounted to acquiescence and their plea was barred by the principle of estoppel. It would be useful to quote the relevant part of the observations, which are as under: Although in strict terms the principle of Sec. 115 of the Evidence Act may not be said to have been attracted, the principle of quasi estoppel or equitable estoppel would apply to such a case....In the instant case, if the impugned order is allowed to stand, it will lead to a ridiculous situation, too harsh and against the petitioner not commensurate with the fault, if any, committed by him before his admission. For he having passed the MBBS course successfully will now be deemed to have been relegated to the position of a candidate merely having passed in intermediate science course. 12. In coming to the aforesaid conclusion the Division Bench also relied on Shri Krishan V/s. The Kurukshetra University (supra) besides Harphool Singhs case. That was a case of admission to the L.L.B. course. The petitioner of that case, a school teacher, had taken admission in the L.L.B. course in terms of the regulation which permitted employed persons to attend the classes in the evening and complete three years course. At the Part-I examination the petitioner failed in three subjects but was promoted to Part II course. He was also allowed to take Part II examination. It was then discovered that facts were suppressed by him at the time of issuance of Admit Card at Part II examination which amounted to fraud. Firstly, he was involved in a criminal case, secondly his attendance was short of the requisite number and thirdly permission of the concerned authorities was not obtained and filed as per the undertaking. Rejecting the stand of the University the Supreme Court held that once the candidate is allowed to take examination, rightly, or wrongly, then the Statute which empowers the University to withdraw the candidature will deemed to have worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before the candidate permission to appear. The conduct of the University authorities was treated as acquiescence in the infirmities. The Court observed that where a person on whom fraud is committed is in a position to discover the truth by due diligence then fraud is not proved because it is neither a case of suggestio falsi orsuppressio veri. 13. Adverting to the instant case, as indicated above, virtually nothing was done by the respondents for four years between 1994 and 1998 during which the petitioner passed the Final MBBS examination and got himself registered with the Bihar Council of Medical Registration. The authorities being of the view that the petitioner did not belong to Kisan community and the caste certificate was false, a doubt in fact having been expressed by Dr. The authorities being of the view that the petitioner did not belong to Kisan community and the caste certificate was false, a doubt in fact having been expressed by Dr. D.K. Sinha Incharge Students Welfare of the College that the certificate of the District Welfare Officer, Ranchi, dated 2-3-94 was not correct, they were required to pursue the matter to its logical end. They however, did nothing of the kind until 18-9-98 when information is said to have been sought from the petitioner or they received communication dated 24-10-98 from the Health Department. Their conduct, in my opinion, therefore, amounts to acquiescence. Though the petitioner was not eligible for admission in the Scheduled Tribe category, the fact remains that by virtue of his passing the MBBS course, he would be deemed to have acquired requisite qualification. By interim orders in CWJC No. 9946/98, he was also allowed to complete his Internship. In my opinion, on the ground that admission at the initial stage was irregular, it would not be proper to undo the result of the examination and his qualification. The illegality in admission notwithstanding the fact is that the petitioner passed the MBBS course and is a registered medical practitioner. Upholding the impugned order would amount to wiping out all that has happened during the last ten years or relegating the petitioner to 1990 status which in my opinion would be too harsh. The case of State of Tamil Nadu V/s. Gurusamy (supra) was a case of cancellation of Caste Certificates and regard being had to the facts and circumstances of the present case, has no application. 14. The above observations or findings however, must be understood as meant for the purpose of this writ petition alone, confined to the validity of the impugned order cancelling admission. They must not be construed as conferring status of Scheduled Tribe on the petitioner, and he must be treated as a general candidate, or to be more precise as a non-scheduled tribe candidate, unless declared otherwise by the competent Court or authority in a property instituted suit or proceeding, for the purpose of his appointment in the Bihar Health Service or otherwise. The observations should also not affect merit of the Criminal Case which seems to have been instituted against the petitioner. 15. The observations should also not affect merit of the Criminal Case which seems to have been instituted against the petitioner. 15. In the result, these writ petitions are allowed, the impugned order notice dated 7-11 -98 contained in Annexure 10 to CWJC No. 9946/98 and the order dated 12-2-2000 contained in Annexure 1 in CWJC No. 844/2001 and Annexure 13 in CWJC No. 9946/98, are quashed but subject to the observations made hereinabove. There will be no order as to cost.