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2002 DIGILAW 47 (PAT)

Madhusudan v. State Of Bihar

2002-01-10

S.N.JHA

body2002
Judgment 1. The petitioner, in effect and substance, seeks quashing of the decision of the State Government to terminate his services. Having taken the said decision the Government by letter no. 8892 dated 14.9.2001 of the Home (Police) Department has sought concurrence from the Bihar Public Service Commission. The petitioner seeks quashing of the said letter and a mandamus not to disturb his appointment. 2. The petitioner is a Deputy Superintendent of Police. He was appointed to the Bihar Police Service in 1993 in the Scheduled Caste category on the basis of the Combined Competitive Examination held in the year 1991 result of which was published in 1992. It later came to the notice of the Government that the petitioner did not belong to Scheduled Caste, he was Baniya by caste but by misrepre- sentation managed to secure appointment in the Scheduled Caste category. The case of the petitioner is that though he was Baniya by caste by birth, on 10.3.78 when he was 14 years old he was adopted by one Rameshwar Paswan, a Dusadh by caste, which is a Scheduled Caste in the State of Bihar. The petitioner has tried to make out a case that the said adoption by Rameshwar Paswan was a valid adoption within the meaning of Hindu Adoption and Maintenance Act, 1956. He has also given details of his academic career to impress upon the Court that he has been a good student throughout, in the competitive examination in question also he had secured 588.5 marks which was more than the marks secured by the last candidate in the General category. It was accordingly submitted that even if the petitioner had not claimed the benefit of reservation he could have been appointed on merit. 3. It may be mentioned here that though in the writ petition detailed averments have been made to make out case of adoption by Rameshwar Paswan, Shri Ram Balak Mahto, learned counsel for the petitioner, fairly did not press the petitioners case in that regard. He confined himself to the alternative case to the effect that by virture of the marks secured by him in the said competive examination he would have been otherwise appointed on merit and, therefore, there is no justification for the Government to terminate his appointment. 4. He confined himself to the alternative case to the effect that by virture of the marks secured by him in the said competive examination he would have been otherwise appointed on merit and, therefore, there is no justification for the Government to terminate his appointment. 4. On behalf of the State it was submitted that even if it be accepted that the petitioner would have been otherwise appointed on merit, he might not have got the Bihar Police Service and, therefore, his appointment on the post of Deputy Superintendent of Police cannot be said to be illegal (siclegal ?) and therefore the decision to terminate his appointment does not require any (sicinterference ?). 5. The above aspect of the case was noticed by this Court on 11.12.2001 when the Commission was directed to inform the Court about the petitioners position in the merit list as to whether, if he were to be treated an OBC candidate (Baniya caste admittedly comes in the Backward classes in the State of Bihar), he could have been recommended for the Bihar Police Service or any other service. The Commission has filed affidavit stating that the petitioners position in the merit list on the basis of 37th Combined Competitive Examination was 86th he had secured 583.5 marks and he was not eligible for appointment to the Bihar Police Service in the OBC category. However, in the said affidavit the Commission has also stated that the last candidate recommended in the OBC category for appointment to the Bihar Administrative Service had obtained 578 marks, that is to say, less than the marks secured by the petitioner. It appears that there were only four vacancies in the Bihar Police Service for which recommendations were made on the basis of the 37th Combined Competitive Examination, two of which were reserved for Extremely Backward category and Scheduled Caste category while the remaining two, were General. The petitioner was recommended in the Scheduled Caste category. 6. Shri Ram Balak Mahto submitted that from the above affidavit of the Commission it is clear that the petitioner had secured enough marks for being recommended for appointment to the Bihar Administrative Service, if not for Police Service, and considering his performance it would not be just and proper to oust him from service after 9 years of appointment. 6. Shri Ram Balak Mahto submitted that from the above affidavit of the Commission it is clear that the petitioner had secured enough marks for being recommended for appointment to the Bihar Administrative Service, if not for Police Service, and considering his performance it would not be just and proper to oust him from service after 9 years of appointment. He urged that it is not a case where the petitioner can be said to have played any fraud at the stage of entry in service. The documents enclosed with the writ petition amply show that adoption had taken place in 1978 as in all subsequent records the name of the petitioners father was shown as Rameshwar Paswan and not Jadunandan Prasad, the name of his natural father. 7. I do not wish to go into questions of fact. Though I am inclined to think that the so called adoption was for ulterior motive, such as benefits in public employment etc. this had happened much prior to the recruitment. There cannot be doubt, in the facts and circumstances, that the petitioner was not eligible for appointment to the Bihar Police Service. As seen above, two out of four vacancies falling in the reserved category, as per roster point, were meant for Extremely Backward and Scheduled Caste categories candidates. There being no other vacancy in the Backward Class category, if he were treated as OBC candidate, the petitioner could not have been re-commended. In fact, the marks secured by him was less than the marks secured by the General category and, therefore, he could not have been recommended for the Police Service in the General category either. However, the appointments are fait accompli having taken place about a decade ago in 1993. Even if the petitioner, is removed from service, the resultant vacancy is not likely to be filled up from the merit list prepared on the basis of said Competitive Examination by appointing a Scheduled caste candidate in his place. Though he had qualified for appointment to the Bihar Administrative Service on merit as the last candidate recommended for appointment to the said service in the general category had secured less marks than him, no direction can be issued to appoint him to the said service at this stage. That may also unsettle the seniority of the recruits of the 37th Combrned Competitive Examination and subsequent Examinations. That may also unsettle the seniority of the recruits of the 37th Combrned Competitive Examination and subsequent Examinations. The Commission and, indeed, the State Government having accepted the candidature of the petitioner in the S. C. category (it was open to them to make an inquiry in respect of his social status at the stage of recruitment), and appointed him in the said category, the appointment having continued for 9 years, it would not be proper to allow the State to terminate his appointment at this stage, with a direction, however, that the petitioner would not be treated as an officer of the Scheduled Caste category and accordingly be entitled to any advantage as such in the service, as was done by the Supreme Court in Kumari Madhuri Patil and anr. V/s. Additional Commissioner, Tribal Development & Ors., (1994)6 SCC 241 . That was a case in which the admission of the concerned candidate in the S. C. category was held to be illegal but as she had already completed the course, she was allowed to appear at the final examination with a direction that in future she cannot be treated as S. C. candidate. 8. Before I close the discussion, in fairness to the respondents, I must mention that an objection was taken by the counsel for the State that the writ petition is premature inasmuch as final order in the matter of termination of petitioners appointment has not been passed as yet. It is true, as indicated at the outset, that the petitioner has approached this Court at a stage when the Government has sought concurrence from the Bihar Public Service Commission as required under Article 320 of the Conslitution, but it is well settled that what is envisaged in Article 320 is consultation with the Commission and the consent of the Commission is not binding on the Government. So far as the State Government is concerned, it has already taken a decision to terminate the petitioners appointment, which, in my opinion, gave valid cause of action to approach this Court for suitable direction. The objection of the counsel for the respondents in this regard stands rejected. 9. In the result, this writ petition is allowed, the impugned notification dated 14.9.2001 is quashed, but subject to observations and direction made hereinabove.