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2002 DIGILAW 7 (PAT)

Subrat Prasad v. State Of Bihar

2002-01-02

NAGENDRA RAI, P.N.YADAV

body2002
Judgment 1. Heard learned counsel for the parties. 2. This appeal is directed against the order dated 13.12.2001 passed by the learned single Judge, whereby the interim order dated 8.11.2001 has been vacated. 3. Before adverting to the submissions advanced at the bar, it is relevant to state the facts in brief. The appellant got admission in the MBBS course as Scheduled Caste candidate. On the basis of certain information, the respondents decided to enquire about the caste of the appellant. A report was called for from the District Magistrate. The District Magistrate after preliminary enquiry reported that the appellant is Surhi by caste. Thereafter, the order dated 17.10.2001, as contained in Annexure-3 to the writ application, was passed by the Controller of Examination asking the District Magistrate to make a detailed enquiry about the caste certificate issued to the appellant so that the caste certificate may be cancelled in case it is found to be incorrect. 4. The appellant, thereafter, filed the present writ application challenging the policy decision of the State Government dated 11th December, 1985, wherein it has been held that the child born from legally wedded upper caste Hindu father and Scheduled Caste mother will be only treated to be Scheduled Caste candidate. Learned single Judge on 8.11.2001 granted interim stay of the order, as contained in Annexure-3 to the writ application. Thereafter, by the impugned order the interim stay has been vacated. 5. Learned counsel appearing for the appellant submitted that neither any application was filed for vacating the stay order nor the learned single Judge has assigned any reason for vacating the order of stay. To that extent, the learned counsel for the appellant is right in submitting that while vacating the order of stay, the learned single Judge has not assigned any reason. 6. Be that as it may, the question for consideration before this Court is whether the order vacating the order of stay by the learned single Judge should be interfered with or not. In this connection, learned counsel appearing for the appellant submitted that in case the stay is not granted to the decision taken by the authorities, as contained in Annexure- 3 to the writ petition, the writ petition will become infructuous and there will be irreparable injury to the appellant. In this connection, learned counsel appearing for the appellant submitted that in case the stay is not granted to the decision taken by the authorities, as contained in Annexure- 3 to the writ petition, the writ petition will become infructuous and there will be irreparable injury to the appellant. Learned counsel drew our attention to the judgment of the Supreme Court with regard to grant of interim stay in the writ petition. 7. There is no controversy that the Court has power to grant interim stay to prevent undue hardship to the parties. No hard and fast rule can be laid down for grant of interim stay by this Court while exercising power under Article 226 of the Constitution of india. It depends upon facts of each case. While considering the question of grant of stay if it is found that refusal may amount to causing undue hardship to a party the same should be a good ground for grant of stay. However, if it is found that grant of stay will give undue advantage to a party, then no case for stay is made out. 8. The question for consideration in this case is whether it is a fit case whereby pending the writ petition the order as contained in Annexure-3 is to be stayed or not. As we have already stated that the order as contained in Annexure-3 to the writ petition passed by the Controller of the Examination is not a final order and it has asked the District Magistrate to hold a detailed enquiry with regard to the caste certificate granted to the appellant, no final decision has been taken in the matter and only an enquiry has been ordered to be held. The District Magistrate has to hold enquiry after giving an opportunity to the appellant and the State before coming to a final conclusion as to whether the caste certificate is to be cancelled or not. As the order, as contained in Annexure-3 to the writ petition, is not final order, we are of. the view that it is not a fit case where there should be stay of the aforesaid order and accordingly, no case for interference with the order of the learned single Judge is made out. 9. As the order, as contained in Annexure-3 to the writ petition, is not final order, we are of. the view that it is not a fit case where there should be stay of the aforesaid order and accordingly, no case for interference with the order of the learned single Judge is made out. 9. However, we make it clear that in case the enquiry is held by the District Magistrate and any adverse order is passed against the appellant on the basis of the same either cancelling the caste certificate or passing any other order, it will be open for the appellant to move before the learned single Judge for grant of interim stay. 10. With the aforesaid observation, this appeal stands disposed of.