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2003 DIGILAW 679 (PAT)

Subhashini v. State Of Bihar

2003-07-08

SHASHANK KR.SINGH

body2003
Judgment 1. The present writ application has been filed for quashing of Annexures-1 and 2, the order of Controller of Examination, Bihar Combined Entrance Competitive Examination Board dated 26.11.2002, by which order of allotment and order of admission of the writ petitioners in M.B.B.S. course in different colleges in Bihar on the seats reserved for SC/ST have been cancelled in view of report of the District Magistrate, Aurangabad and the District Magistrate, Kaimur at Bhabua. 2. A further prayer has been made for quashing of Annexure-3 which is the cancellation order of the caste certificate issued from the office of the Sub-divisional Officer, Aurangabad. 3. The short fact of the present case is that as advertisement was published for admission in M.B.B.S./B.D.S/B.A.M.S./ B.H.MS, courses for the sessions 2002-03 both the petitioners applied as scheduled tribe candidates. Admit cards were issued to them and written test was conducted on 11.7.2002. Both the petitioners succeeded in the aforesaid test. Counselling was held on 24.8.2002 and the petitioners were declared successful. In the meantime, in view of the decision of the State of Bihar to reduce the reservation for the scheduled tribe candidates from 7% to 1 % fresh counselling was held on 18.10.2002. Both the petitioners who are own sisters were directed to furnish a fresh caste certificate. However, as some doubt arose, the Controller of Examination of Bihar Combined Entrance Competitive Examination wrote to the petitioners to show cause till 6.11.2002 explaining the discrepancies in their caste certificate until then their seats were directed to be blocked. The aforesaid letter has been appended as Annexure-4. The parents of the petitioners in view of aforesaid show cause filed reply stating therein that the father of the petitioner is residing in Gumla district and as such he had applied and obtained caste certificate of both the petitioners from the competent authorities on the basis of the caste certificate issued to him. It has been contended by learned counsel that by mistake the issuing authority failed to mention the permanent address of the petitioners as Bhabua district. However, not being satisfied by the aforesaid reply, the Controller of Examination requested the District Magistrate, Aurangabad to verify the genuineness of the caste certificate of the petitioners. It has been contended that the District Magistrate, Aurangabad asked the District Welfare Officer, Aurangabad to verify and report. However, not being satisfied by the aforesaid reply, the Controller of Examination requested the District Magistrate, Aurangabad to verify the genuineness of the caste certificate of the petitioners. It has been contended that the District Magistrate, Aurangabad asked the District Welfare Officer, Aurangabad to verify and report. The District Welfare Officer subsequently directed the Sub-divisional Officer for the same. It further transpires that after obtaining the report of the Circle Officer, Aurangabad the Sub-divisional Officer, Aurangabad wrote to the mother of the petitioners to submit the caste certificate issued by the Sub-divisional Officer, Bhabua. However, instead of submitting the said certificate the mother of the petitioners brought certain evidences and certificates in support of their caste who were claiming that they belong to Gond caste which is a scheduled tribe and their permanent residents were village Akhlashpur, Bhabua and requested him to submit a verification report to the Controller of Examination. However, Sub-divisional Officer, Aurangabad wrote to the mother of the petitioners cancelling the caste certificate issued to the petitioners treating them as Gond caste. The Sub-divisional Officer further wrote to the District Magistrate, Aurangabad that the caste certificate issued in favour of the petitioners have been cancelled and the Controller of Examination be informed accordingly. The same has resulted in issuance of Annexure-1. 4. The contention on behalf of the petitioners is that a caste certificate cannot be cancelled on the ground that it has been issued by different authorities as in the present case as the mother and father of the petitioners are posted at two different places, as such, they could have very well obtained the caste certificate from the place of their residence. The requirement is of obtaining a caste certificate from the place they reside and not the place originally from where they belong. It has further been argued that if the mother and the father or the petitioners have been accepted as belonging to the Gond caste i.e. a sub-caste of the scheduled tribe then their offspring automatically become Gond that is a scheduled tribe. It has further been argued that if the mother and the father or the petitioners have been accepted as belonging to the Gond caste i.e. a sub-caste of the scheduled tribe then their offspring automatically become Gond that is a scheduled tribe. In support of their contention a long list of documents have been relied upon by the counsel of the petitioners that is the entry into Khatian, i.e. of the year 1913 as contained in Annexure-5 and other documents of the year 1924 and onwards to show that the aforesaid documents went to show that they were of Gond caste with their profession being that of Cutter. Other documents also as contained in Annexures-6, 7, 8 and 9 have been relied on for the same purpose. Annexure-10 is the enquiry report of Information Officer (Parsar Padadhikari), Bhabua deted 12.6.1998 submitted to the Sub-divisional Officer, Bhabua relying on census report and other relevant documents and the customs adopted by the petitioners family. It has been submitted in the report that the family was a subcaste of Gono" tribe and such castes are scheduled tribes. Further testimonials issued by the Sub-divisional Officer has also been annexed in support of the contention that the services of the oetitioners forefathers have been appreciated towards their contribution to the upliftment of the community. Other research papers as contained in Annexure-12 have been relied upon to show that Gond community resided in the area from where petitioners belong. Annexure-13 has been brought on record to show that different members of the petitioners family have been granted caste certificate of being Gond as scheduled tribe, since 1957 onwards till 2002. These certificates have been relied upon to show that this was the settled and accepted fact that the petitioners and their family members were Gond and scheduled tribe and a settled thing was tried to be unsettled on flimsy ground after holding a superficial enquiry. According to learned counsel, a settled thing cannot be unsettled in this way. No detailed enquiry has been held. The contention of learned counsel tor the petitioners is tnat nothing nas been brought on record to satisfy the Court that the matter had been enquired at length and cogent reason were there for the district authorities to cancel the caste certificate of the petitioners. No detailed enquiry has been held. The contention of learned counsel tor the petitioners is tnat nothing nas been brought on record to satisfy the Court that the matter had been enquired at length and cogent reason were there for the district authorities to cancel the caste certificate of the petitioners. Caste certificates being issued from Aurangabad where the mother of the petitioners was working as the Principal in the local college could not have been a ground for cancellation of the caste certificate. According to learned counsel, overwhelmina evidence on record which goes to show that they belonn to the scheduled tribe community and as such, Annexure-3 be quashed and consequential order issued by the Controller Examination being Annexures-1 and 2 be also quashed. 5. Learned counsel for the State, on the other hand, had on the earlier occasion contended before the Court that before issuing the certificate to the petitioners as belonging to the backward class (Bhatbhunja) a full-dress enquiry was conducted at the level of the District Magistrate, Bhabua. Though nothing has been brought on record that such an enquiry had been held and only by bringing one page document i.e. Annexure-R/7-G, in the counter affidavit of respondent no.7, which goes to show that the same has been issued in view of orders given for the said purpose. The matter was adjourned for them to produce the relevant records to show that a full-dress enquiry after participation of the petitioners or their parents had been conducted to deprive them of the certificate which has been issued in their favour and the enquiry had resulted in a conclusive proof that they belong to different caste. 6. On the last day when the matter was taken up, learned counsel for the State very fairly submitted that the report was based after verifying the fact that from the area where the petitioners claim to belong or their ancestors used to live, in that area no person of Gond caste resides. Actually the caste which resided in those areas were Gour or Gonr and as the petitioners ancestors resided in that area they were also either Gour or Gonr which belong to backward class and not scheduled tribe. It has further been argued that caste Gonr is commonly called as Bhatbhunja. Actually the caste which resided in those areas were Gour or Gonr and as the petitioners ancestors resided in that area they were also either Gour or Gonr which belong to backward class and not scheduled tribe. It has further been argued that caste Gonr is commonly called as Bhatbhunja. The document which has been appended by the petitioners have also been tried to be read in the light of the aforesaid submission and as such, it has been contended that as no such community resided in that area. By mistake, the ancestors of the petitioners may have received certificate of belonging to scheduled tribe class but that enquiry itself did not confer any right in the petitioners and as such, their certificates have rightly been cancelled. 7. Learned counsel for the petitioners in support of their contention has relied upon a judgment of this Court in the case of Sumit Anand through his father Dr. Sunil Kumar, reported in 2002(3) PLJR 393 where this Court held that if the parents of a particular person belong to a particular community that is scheduled tribe, the irresistible conclusion would be that the said claimant belongs to the said community. Petitioners ancestors/predecessors, both from paternal and maternal side proved to be belonging to the Gond tribe. The notings of deed-writers and personal enquiry made by Registering Officer coupled with positive recommendation made in petitioners favour by Circle Officer and the District Magistrate after applying their independent minds, petitioner entitled to get certificate of Gond tribe. It was further held that if certificates issued in favour of the petitioners parent and other relations stand, then there will be no occasion for the State Government to make an enquiry into the certificates issued in their favour under the garb of enquiry proposed to be made into the entitlement of petitioner. 8. Reliance has been made in the aforesaid case to press the point that the petitioners case is also squarely covered by the aforesaid case. The certificates issued in favour of the parents and other relations of the petitioners have not been cancelled. The documents on record being very old as back as 1913 and the report of the Circle Officer and other reports as appended with the writ application go to show that the family members of the petitioners belong to Gond tribe. The certificates issued in favour of the parents and other relations of the petitioners have not been cancelled. The documents on record being very old as back as 1913 and the report of the Circle Officer and other reports as appended with the writ application go to show that the family members of the petitioners belong to Gond tribe. Now by making a superficial enquiry the said certificate cannot be cancelled, even enquiry was not required to be made just for the purpose of unsettling a settled fact which is coming on since generation as there is no averment that either from the mother side or the father side due to inter-caste marriage or otherwise they no more belong to the Gond caste. 9. Further reliance has been made upon an unreported judgment of a Division Bench of this Court in the case of Anjani Kumar V/s. The State of Bihar and Ors. in C.W.J.C. No. 1407 of 1990 where a Division Bench of this Court on 24.10.1990 in a similar matter directed the Respondent-District Magistrate to grant caste certificate to the petitioner showing him as a member of scheduled tribe belonging to Gond community within one month, wherein this Court after appreciating the fact that since the petitioners father and grand father have been found by the concerned authorities specially the predecessor of the District Magistrate who was the competent authority to grant certificate to be member of Gond community, the irresistible conclusion would be that the petitioner is alsomember of Gond community. When father and grand father are Gond community, the Court held that we really fail to understand that how the son can become non-Gond. 10. This Court relying on two orders of this Court in C.W.J.C. No. 7826 of 1989 disposed of on 30.4.1990 and C.W.J.C. No. 8321 of 1988 disposed of on 23.5.1989 held that members of Gond community residing within whole of the State of Bihar have been declared to be scheduled tribe by a Presidential order. In view of the aforesaid facts, the Court held that this Court have no option but to hold that the respondent-District Magistrate was not justified in not granting caste certificate to the petitioner holding him to be belonging to the Gond tribe i.e. a scheduled tribe. 11. In view of the aforesaid facts, the Court held that this Court have no option but to hold that the respondent-District Magistrate was not justified in not granting caste certificate to the petitioner holding him to be belonging to the Gond tribe i.e. a scheduled tribe. 11. In the facts of the case, in view of discussions as made above, and in view of case laws as relied upon by the petitioners and specially in view of the fact that flimsy and superficial enquiry has been made by the District Magistrate, Bhabua, this Court has no option but to quash Annexure-3 and the consequential orders as contained in Annexures-1 and 2. In view of quashing of Annexures-1, 2 and 3 the Controller of Examination, Bihar Combined Entrance Competitive Examination Board may further proceed to pass appropriate orders and take follow up action as if these annexures never existed. However, passing of this order would not preclude the District Magistrate, Bhabua to get a fulldress enquiry instituted and after getting the matter enquired into at length with the participation of the petitioners, he may after giving notice to them, pass a detailed appropriate orders holding as to which community/caste/tribes the petitioners belong but as a vested right which is coming from generation to generation has to be taken away, due caution is to be exercised. 12. This writ application is allowed to the extent indicated above.