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2011 DIGILAW 377 (PAT)

Pankaj Kumar Basak v. State Of Bihar

2011-03-14

NAVIN SINHA

body2011
JUDGEMENT 1. Heard learned counsel for the petitioner and the State. 2. LA. No. 1483 of 2011 has been filed questioning the order dated 15.2.2011 (at Annexure-B to the counter affidavit) passed during the pendency of the writ application by the Block Development Officer, Bahadurganj, declining to issue a scheduled caste certificate to the petitioner in the prescribed format holding that the earlier scheduled caste certificate issued to his father, other family members and the petitioner was not proper and was being recommended as a subject matter for further enquiry and cancellation. 3. The petitioner came to this Court seeking a limited relief for issuance of a scheduled caste certificate ("Chaupal") in the prescribed format having cleared the written examination conducted by the Union Public Service Commission on strength of the earlier certificate issued by the respondents as it was not in the format prescribed by the Commission. 4. Learned counsel for the petitioner submits that "Chaupal" is a Scheduled Caste as per the Gazette of India, Scheduled Caste and Scheduled Tribes Order (Amending Act, 1976) dated 18.9.1976 standing at Serial No. 7 of the list of Scheduled Castes in the State of Bihar. The State Government on 27.1.2004 issued an instruction that persons belonging to "Chaupal" caste often did not hold lands and therefore their caste status could not be considered on basis of land records only. Contemporaneous records of the Panchayat in which there was reference to "Chaupal" caste must also be examined. The Mukhiya, Sarpanch, Panchayat Sevak, Jansevak or other Government servants concerned shall hold a spot enquiry and satisfy themselves before issuance of such certificate. 5. The petitioners father belongs to the "Chaupal" caste and was issued a scheduled caste certificate alongwith his mother as far back as 1996. The petitioner pursued his M.B.B.S. course and completed the same in the year 2007 based on the aforesaid caste status. He applied for a caste certificate as belonging to "Chaupal" which was issued to him by the Block Development Officer on 21.8.2007 and the Sub-Divisional Officer on 30.8.2007. These certificates remained valid and have not been cancelled. Based on these certificates, the petitioner appeared in the competitive examination conducted by the Bihar Public Service Commission and was declared successful and allotted the Bihar Registration Service. The Bihar Public Service Commission at no stage called the certificate categorization into question or raised any doubt about his caste status. These certificates remained valid and have not been cancelled. Based on these certificates, the petitioner appeared in the competitive examination conducted by the Bihar Public Service Commission and was declared successful and allotted the Bihar Registration Service. The Bihar Public Service Commission at no stage called the certificate categorization into question or raised any doubt about his caste status. The mere fact of having asked for the caste certificate in the prescribed format has given rise to an unnecessary controversy. He relies upon A.I.R. 1995 SC 94 (Kumari Madhuri Patil & Ors. vs. Additional Commissioner Tribal,Development and Ors.) as modified in (1997)5 SCC 437 to submit that the caste status cannot be determined in the manner sought to be done by the impugned order under the authority of the Block Development Officer. 6. Learned counsel for the State submits that the matter has been re-enquired and the impugned order dated 15.2.2011 adequately notices that there were three categories "Chaupal", "Chapual" and "Chopal". Those belonging to "Chaupal" like the petitioner could not be granted certificates as "Chopal". The impugned order therefore concludes that the caste certificates issued to the petitioner and his family members were to be recommended for cancellation. 7. It is not in controversy that though the petitioner had submitted certain documents asked for by the respondents he was not associated with and was not provided any opportunity of hearing during this fresh enquiry after furnishing materials as discussed in the order to him with opportunity to meet the same. 8. The Court on consideration of the submissions made on behalf of the parties finds that the scheduled caste certificate issued to the father of the petitioner as far back as 1996 is not in dispute on behalf of the respondents in their counter affidavit at all except for the satisfaction in the impugned order that it may be a matter for further enquiry. That is a completely speculative matter at this stage. 9. In 2003(8) SCC 204 [:2004(1) PLJR (SC)37] (Punit Rai vs. Dinesh Chaudhary) it has been held at Paragraph-41 as follows: "41. Determination of caste of a person is governed by the customary laws. A person under the customary Hindu law would be inheriting his caste from his father. In this case, it is not denied or disputed that the respondents father belonged to a "Kurmi" caste. Determination of caste of a person is governed by the customary laws. A person under the customary Hindu law would be inheriting his caste from his father. In this case, it is not denied or disputed that the respondents father belonged to a "Kurmi" caste. He was, therefore, not a member of the Scheduled Caste. The caste of the father, therefore, will be the determinative factor in absence of any law....." 10. So long as the caste certificate of the father of the petitioner stands, the Court today finds it difficult to uphold the speculative impugned order to deny the petitioner the benefit of the scheduled caste certificate as "Chaupal" in the prescribed format more so since the caste certificate issued to the petitioner after enquiry by the B.D.O. and the S.D.O. on 21.8.2007 and 30.8.2007 are also not disputed and denied in the counter affidavit. To the contrary, the counter affidavit is completely silent on that aspect. 11. The Court (siccannot?) loose sight of the fact that the entire occasion for the respondents to call into question the caste status of. the petitioner arises when he seeks his caste certificate only in the prescribed format. Till that stage, the respondents had no reason to doubt their own certificates or call it into question. Paragraph-8 of the counter affidavit states "in the meantime, it came to light that the writ petitioner does not belong to the "Chaupal" caste". The counter affidavit is completely silent on how it came to light. It then goes on to suggest after the concealed fact emerged fresh enquiry has been suggested. It then states that the petitioner himself took back his own documents even before the enquiry could be completed. A bare perusal of Annexure-A to the counter affidavit in support of the same completely belies the stand of the respondents. His application only states that he desires return of the original Khatiyan submitted by him in support of his application. The petitioner never made any request withdrawing his original claim for issuance of a scheduled caste certificate in the prescribed format. The Court deprecates the attempt of the official respondents to distort, twist facts and mislead the Court. They are expected to act more responsibly especially when representing the Government. 12. The petitioner never made any request withdrawing his original claim for issuance of a scheduled caste certificate in the prescribed format. The Court deprecates the attempt of the official respondents to distort, twist facts and mislead the Court. They are expected to act more responsibly especially when representing the Government. 12. Contrary to the earlier certificate issued to the petitioner, without even cancelling the same, much less issuing any show cause to the petitioner, the respondents in, their counter affidavit seek to raise the burden on the petitioner by urging that he did not produce any document in support of his claim. The petitioner was not required to do so. His father had been issued a scheduled caste certificate as also the petitioner on strength of the same. A presumption attaches to the correctness of those certificates under Section 114(e) of the Evidence Act that official acts were performed in normal course and in accordance with law inclusive of the necessary enquiry. It is not the case of the respondents that the earlier certificates were issued to all contrary to procedures. The presumption is of course rebuttable. The onus is on the respondents to demonstrate the wrongness of the earlier certificate. They have wrongly cast the burden on the petitioner. The impugned order or the counter affidavit again does not deal with and answer the recent enquiry report appended by the petitioner to his writ petition at Annexure-4 dated 19.6.2010 by the Block Panchayati Raj Officer, Bahadurganj confirming the Scheduled Caste status of the petitioner. It is nobodys case that the earlier certificates were wrongly obtained by the petitioner or his father. 13. The impugned order dated 15.2.2011 or the counter affidavit do not deal with and/or discuss the enquiry materials on basis of which the earlier caste certificates were issued to the petitioner or his father and why those enquiry reports were wrong. 14. On facts, as matters stand today, the caste status of the father of the petitioner, much less of the petitioner as confirmed by the respondents from 1996 through 21.8.2007, 30.8.2007 as recently as 19.6.2010 stands uncontroverted as a scheduled caste "Chaupal". 14. On facts, as matters stand today, the caste status of the father of the petitioner, much less of the petitioner as confirmed by the respondents from 1996 through 21.8.2007, 30.8.2007 as recently as 19.6.2010 stands uncontroverted as a scheduled caste "Chaupal". The right of the respondents to enquire matters is one aspect, the cancellation of the earlier certificates on a speculative observation of issues by the respondents at this stage when the petitioner had oniy sought the caste certificate in the prescribed format is held to be completely unjustified and arbitrary. The onus lies,on the respondents which cannot be cast on the petitioner at the very outset. 15. If the respondents are so advised they shall be obliged to issue him a proper show cause notice disclosing all materials on basis of which they propose to rely that the petitioner had been issued a wrong caste certificate, give him full opportunity to rebut inclusive of personal hearing and then pass a final speaking order displaying full application of mind to all issues. The petitioner till then is held entitled to a scheduled cast certificate "Chaupal" in the prescribed format. 16. The Court holds and directs that any enquiry into the caste status of his father or the petitioner shall be held only in accordance with the law as laid down by the Supreme Court in the case of Kumari Madhuri Patil (supra) referred to above and in no other manner. 17. If the caste certificate of the petitioners father/petitioner is proposed to be cancelled after such enquiry, the Secretary, Department of Personnel and Administration, Government of Bihar, shall himself simultaneously examine the original file which may have dealt with the matters at the District level after which the earlier caste certificates had been issued.. The Secretary shall then ensure that a First Information Report is lodged alongwith necessary departmental action initiated against all concerned Government servants who may have dealt with the file, whosoever they may, and then only shall the order for cancellation of the certificates be issued. 18. The Court is informed at the Bar that the petitioner has to appear for interview before the Union Public Service Commission in the 1st week of April. 19. Let the caste certificate of the petitioner in the aforesaid manner be issued latest by the 31st of March, 2011. 20. The writ application stands disposed.