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2002 DIGILAW 781 (JHR)

STATE OF BIHAR v. KUMARL ABHA

2002-07-23

LAKSHMANA RAO, SUDHANSU JYOTI MUKHOPADHAYA

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Judgment : S. J. MUKHOPADHAYA, J. ( 1 ) THE respondent writ petitioner, Kumari Abha having successfully competed in Pre-medical and Dental Test, was admitted in the 1st year M. B. B. S. course in M. G. M. Medical college, Jamshedpur for the sessions, 1993-94 subsequently a notice vide letter No. M. C. /73/94 dated 3rd February, 1994 was issued on her alleging submission of forged s. C. certificate, she being not a S. C. On receipt of reply the Deputy Secretary, Health medical Education and Family Welfare Department, government of Bihar, Patna vide impugned letter No. 250 (26) dated 18th october, 1996 ordered to cancel her admission. ( 2 ) THE learned single Judge by impugned judgment dated 18th August, 1997 allowed the writ petition, C. W. J. C. No. 3928/1996 (R), as was preferred by her, set aside the order dated 18th October, 1996, allowing Kumari Abha to pursue her studies and to appear in all examinations. ( 3 ) THE appellant-State of Bihar took plea that the deed of her adoption by a scheduled Caste was not proper being not registered, nor the writ Petitioner-Kumari abha can be treated as a Scheduled Caste member having not born in a Scheduled caste family. ( 4 ) ADMITTEDLY, writ petitioner Kumari abha born in a Kurmi family, a member of other Backward Class (O. B. C. ). The case of writ petitioner-Kumari Abha was that she was adopted at the age of 5 years by one late Ramdin Ram, a member of Scheduled caste (S. C. ). After her adoption, since her 5 years of age, she was brought up by her adopted parents. Late Ram Ramdin Ram got her admitted in Schools and Colleges wherein in the records her fathers name has been shown as Ramdin Ram. ( 5 ) BEFORE learned single Judge the Appellant-Respondent State of Bihar took only plea that the deed of adoption being not registered the Writ petition cannot claim to have been adopted by (Late) Ramdin Ram. Late Ram Ramdin Ram got her admitted in Schools and Colleges wherein in the records her fathers name has been shown as Ramdin Ram. ( 5 ) BEFORE learned single Judge the Appellant-Respondent State of Bihar took only plea that the deed of adoption being not registered the Writ petition cannot claim to have been adopted by (Late) Ramdin Ram. ( 6 ) THE learned single Judge taking into consideration the fact that Kumari Abha was adopted by (Late) Ramdin Ram at the age of 5 years following all the rites and ceremonies, a deed of adoption was executed by the original parent, in the School records and certificates granted by the Bihar School examination Board and the Intermediate council (Late) Ramdin Ram has been shown as her father, held that there being strong presumption of adoption and in absence of any contrary provision such as registration under S. 16 of the Hindu Adoption and Maintenance act. 1986, the adoption cannot be held to be illegal. Learned single Judge noticed the Supreme court decision in Debi Prasad v. Triveni Devi. AIR 1970 SC 1986 wherein the apex court made similar observation. ( 7 ) LEARNED single Judge also noticed the Supreme Court decision in Banwari Lal v. Trilok Chand, AIR 1980 SC 419 wherein the Apex Court held that if there is evidence to the effect that since childhood she or he is treated as son/daughter of the adopted father, it is a strong presumption of adoption. ( 8 ) SHRI A. K. Mehta, learned counsel for the State of Jharkhand assisted in trial court the institute namely, M. G. M. Medical college, Jamshedpur. having fallen with in the jurisdiction of State of Jharkhand while he accepted that there is no necessity to registered deed of adoption, submitted that even on transplantation by adoption, kumari Abha is not entitled to claim reservation under Article 15 (4) of the Constitution of India. He placed reliance on Supreme court decisions in Valsamma Paul v. Cochin university, reported in (1996) 3 SCC 545 : ( AIR 1996 SC 1011 ) and State of Tripura v. Namita Mujumdar, reported in (1998) 9 SCC 217 . ( 9 ) SIMILAR issue fell for consideration before Courts from time to time. In the case of Madhuri Patil v. Addl. Commr. ( 9 ) SIMILAR issue fell for consideration before Courts from time to time. In the case of Madhuri Patil v. Addl. Commr. Tribal development, (1994) 6 SCC 241 : ( AIR 1995 sc 94 ); the Appellant was daughter of one lakshman Patil, who was Hindu Koly (forward class ). She obtained caste certificate as Mahadeo Koli, a Scheduled Tribe and was admitted into Medical College. When it was found that she belonged to forward class, her admission was cancelled and the writ petition was dismissed. The Supreme Court held that for the purpose of entitlement to admission under Article 15 (4), the identification by the President as a Scheduled Tribe is conclusive. The Apex court did not accord to a member of forward class to study by obtaining a false certificate of a Scheduled Tribe. ( 10 ) IN the case of Valsammas Paul v. Cochin University, (1996)3 SCC 545 : ( AIR 1996 SC 1011 ), the Supreme Court framed the issue whether a candidate, by marriage, adoption or obtaining a false certificate would be entitled to an identification as a member of a class for appointment to a post reserved under Article 16 (4) or for an admission in an Educational Institute under article 15 (4) or not, it held that a lady belonging to non-reserved class on marrying a S. C. , S. T. or O. B. C. or a person belonging to non-reserved class transplanted by adoption or any other voluntary act to a family belonging to a reserved class would not ipso facto entitled to claim reservation under article 15 (4) or 16 (4) of the Constitution as the case may be in view of the advantageous start of life availed by her/him. ( 11 ) SIMILAR view expressed by the Supreme court in the case of State of Tripura v. Namita Majumdar, (1998)9 SCC 217 . That was a case of a forward class female married with a S. C. Member. ( 11 ) SIMILAR view expressed by the Supreme court in the case of State of Tripura v. Namita Majumdar, (1998)9 SCC 217 . That was a case of a forward class female married with a S. C. Member. ( 12 ) IN another case of A. S. Sailaja v. Principal, Kurnool Medical College, AIR 1986 andh Pra 209, the Andhra Pradesh High court held that the mind of children brought up in culturally, educationally and economically advanced atmosphere is accounted highly as they are bound to start the rest of the life with advantage, the children born amongst backward classes would not start the rest of life with the same quality of life. It would , therefore, be necessary to identify the competing interest with diversion of society and it is the duty of the Court to strike a balance between comprising claims of different interest. The Backward classes fulfilling the traits of socially and educationally backward amongst that group, would alone be eligible for admission as backward class citizen under Article 15 (4), ( 13 ) THE aforesaid issue also fell for consideration before the Supreme Court in the case of Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Bardu, 1995 Supp (2)scc 519 : (1995 AIR SCW 2224) and in the case of R. Chandevarappa v. State of karnataka, (1995) 6 SCC 309 . The Supreme court held that when a member is transplanted into Dalits, Tribes or O. B. C. She/ he must have necessarily undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle and avail the facility of reservation. ( 14 ) IN the present case, the petitioner-Kumari Abha originally born in a Backward class Kurmi family, she by birth was not a forward class. In this background, the State cannot equate her with a member of a forward caste Hindu. ( 15 ) IT is not in dispute that Kumari abha was adopted by (Late) Ramdin Ram. a scheduled caste at the age of 5 years. She was born in a family backward caste Kurmi and after her transplantation in a Scheduled caste family by adoption she was brought up in a family of most backward class. ( 15 ) IT is not in dispute that Kumari abha was adopted by (Late) Ramdin Ram. a scheduled caste at the age of 5 years. She was born in a family backward caste Kurmi and after her transplantation in a Scheduled caste family by adoption she was brought up in a family of most backward class. It is also not in dispute that since her 5 years age has brought up in the family of a Scheduled Caste she was subjected to the disabilities, disadvantages, indignities or sufferings of a Backward class. In the background, there appears to be no reason to deny her the facility to which a member of S. C. is entitled. ( 16 ) FURTHER, it is not the case of the appellant-State that she misrepresented to obtain a Scheduled Caste Certificate, nor there is anything on record to suggest that the certificate is forged. On the other hand, it is evident that the writ petitioner-Kumari abha was granted caste certificate by the competent authority after an enquiry. ( 17 ) IT will be also evident that when the writ petitioner Kumari Abha was pursuing study in the year, the impugned order of cancellation was issued on 18th October, 1996. ( 18 ) IN the circumstances, I find no reason to differ with the finding of learned Single Judge. ( 19 ) THERE being no merit, the appeal is dismissed. However, there shall be no order as to cost. Appeal dismissed. --- *** --- .