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2012 DIGILAW 1690 (JHR)

Heman Mandal v. State of Jharkhand

2012-12-07

APARESH KUMAR SINGH

body2012
JUDGMENT Heard counsel for the parties. 2. By this writ petition, the petitioner has sought for quashing the letter No. 1071 dated 24.08.2007 (Annexure-4), issued by the Block Development Officer, Mandu and Memo No. XIII-1/07-1533 dated 06.09.2007 (Annexure-4/1) issued by the District Welfare Officer, Hazaribagh, by which the caste certificate of the petitioner earlier issued on 03.06.1999 by the Block Development Officer, Mandu, Hazaribagh has been cancelled. 3. Counsel for the petitioner submits that the mother of the petitioner namely Shanti Oraon belongs to Scheduled Tribe category, who married with his father namely Late Badhan Mandal, who was a general category person. Counsel for the petitioner submits that after enquiry the respondent No. 4 Block Development Officer, Mandu issued a certificate in favour of the petitioner on 3rd of June, 1999 declaring him to be a member of Scheduled Tribe. It is further submitted that under the policy of the Government of Bihar contained in letter No. 11/Aa-1040/77-Ka-106 dated 3rd March 1979 (Annexure-1) issued by the Personnel & Administrative Reforms Department, Government of Bihar, an off-spring borne out of the marriage of a general category male and a Scheduled Caste/Scheduled Tribe female, is entitled to be granted of Scheduled Caste/Scheduled Tribe certificate after an enquiry, if it is found that the members of the Scheduled Caste/Scheduled Tribe have accepted the marriage and their off-spring borne out of that. It is submitted that the respondents conducted an enquiry and thereafter, issued the caste certificate, which is at Annexure-2 to the writ application. Counsel for the petitioner also submits that on the basis of the caste certificate, he was subsequently appointed in the South Eastern Coalfields Limited and his caste certificate was verified by the Chief Vigilance Officer, whereafter the Deputy Commissioner, Hazaribagh vide letter dated 24.07.2000 (Annexure-2/2) gave a report that the caste certificate is correct. 4. The petitioner has been taken by shock on issuance of the impugned letters, by which his caste certificate has been cancelled purportedly on the basis of a circular dated 3.01.2007 issued by the Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand. According to the petitioner, from a perusal of the circular, it would appear that it has been issued pursuant to the decision of the Hon'ble Supreme Court of India in the case of Anjan Kumar Vs. Union of India in S.L.P. No. 6445 of 2005 reported in 2006(2)JLJR (SC) 186. According to the petitioner, from a perusal of the circular, it would appear that it has been issued pursuant to the decision of the Hon'ble Supreme Court of India in the case of Anjan Kumar Vs. Union of India in S.L.P. No. 6445 of 2005 reported in 2006(2)JLJR (SC) 186. However, the circular also indicates that it is made applicable with immediate effect and not with retrospective effect. Counsel for the petitioner further submits that the petitioner's caste certificate issued earlier in the year 1999 on the basis of a circular in vogue in 1979 would not be annulled on the basis of the instant circular of 2007. Counsel for the petitioner also submits that before cancellation of the certificate, the petitioner has not been granted any opportunity of hearing or show cause and the impugned order is violative of the principles of natural justice. 5. Counsel for the petitioner has relied upon a Constitution Bench judgment rendered by the Hon'ble Supreme Court in the case of V.V. Giri Vs. D.S. Dora reported in AIR 1959 SC 1318 . It is submitted on behalf of the petitioner that 1979 circular was based on the principle laid down in the Constitution Bench judgment and it clearly stipulated that after enquiry, if it is found that the person has been recognized as a member of the caste upon marriage between a Scheduled Caste/Scheduled Tribe member and a general category person, in that case he would be entitled to a Scheduled Caste/Scheduled Tribe certificate. 6. Counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme court in the case of Kavita Solunke Vs. State of Maharashtra & Ors. reported in (2012) 8 SCC 430 and submits that once a Caste Certificate has been granted on the basis of prevalent rules/circulars, subsequent change in the policy of the State will not be a ground to annul the cast certificate granted earlier on the basis of which vested rights have been created and the status of the person has been accepted and recognized. Counsel for the petitioner has also relied upon the judgment of the learned single judge in the case of Neena Bharti Vs. the State of Jharkhand & Ors. reported in 2009 (3) JCR 405. Counsel for the petitioner has also relied upon the judgment of the learned single judge in the case of Neena Bharti Vs. the State of Jharkhand & Ors. reported in 2009 (3) JCR 405. It is also submitted that on the basis of same circular dated 03.01.2007, the caste certificate of the said petitioner was cancelled by the respondents and this court after dealing with the relevant law on the subject was pleased to quash the orders of cancellation of the caste certificate and the writ petition was allowed. 7. It is submitted that this court also took into account the Constitution Bench judgment rendered by the Hon'ble Supreme Court in the case of V.V. Giri (Supra) and also the rule of per incurium as the subsequent judgment in the case of Anjan Kumar (Supra) had not taken into account by the Constitution Bench of the Hon'ble Supreme Court. 8. Respondents have appeared and filed their counter affidavit. It is stated on behalf of the respondents that the impugned order has been issued on the basis of the circular issued by the State of Jharkhand dated 3.01.2007 on the basis of the judgment in the case of Anjan Kumar Vs. Union of India referred thereon by the Hon'ble Supreme Court. Counsel for the respondents has also tried to substantiate the impugned order by additional facts which are brought on record that there was some discrepancy in the caste certificate issued by the Marriage Registrar, Hazaribagh in the year 1993 which shows that the date of the marriage of the petitioner's parents as 15.2.1972 whereas the petitioner's parents had earlier represented as 15.2.1970. 9. However, learned counsel for the respondents have not been able to explain as to how the circular dated 3.01.2007, which was made applicable with immediate effect could be applied retrospectively to cancel the caste certificate issued in the year 1999 to the petitioner on the basis of the circular of 1979 of the erstwhile State of Bihar. Counsel for the respondents has also not able to dispute that before issuance of impugned order, no notice or show cause was given to the petitioner to allow him to explain or defend himself before the impugned action has been taken, which obviously are having seriously adverse civil consequences. 10. I have heard learned counsel for the parties at length and gone through the relevant materials on record. 10. I have heard learned counsel for the parties at length and gone through the relevant materials on record. The order impugned contained at Annexure-4 and 4/1 is clearly based upon the circular dated 03.01.2007. The circular dated 03.01.2007 has been issued to be implemented with immediate effect. The petitioner's caste certificate was issued in the year 1999 on the basis of the circular of 03.03.1979, which stated that in cases of marriage between members of Scheduled Caste/Scheduled Tribe female with general person, status of the offspring would be determined on the basis of enquiry done to find out whether Tribal Community has accepted the marriage concerned and the offspring borne out of that. The judgments of the Constitution Bench of the Hon'ble Supreme Court relied upon by the petitioner also lays down the same proposition that the grant of caste certificate has to be done after determination on enquiry on finding of facts that the marriage between such persons and offspring borne out of their marriage has been recognized by the community as such. It further appears that the judgments rendered by the Constitution Bench on the aforesaid issue was squarely under consideration before the learned Single Judge of a Bench of this Court in the case of Neena Bharti (Supra) wherein also the caste certificate issued earlier in favour of the person was annulled on the basis of the same circular dated 3.01.2007. This Court after dealing with the relevant law on the subject including the judgments in the cases of V.V. Giri and Anjan Kumar (Supra) relied upon by the respondents-State proceeded to hold that the subsequent judgment had not taken into account the ratio laid down by the Constitution Bench of the Hon'ble Supreme Court. This Court, in the aforesaid facts and circumstances, quashed the impugned order of cancellation of caste certificate by allowing the writ petition. It also appears that the impugned order has been passed without issuance of any show cause notice or opportunity of hearing to the petitioner in violation of the principles of natural justice, although, such an act has serious adverse civil consequences. In absence of proper show cause notice, the impugned action becomes arbitrary and violative of Article 14 of the Constitution of India. In absence of proper show cause notice, the impugned action becomes arbitrary and violative of Article 14 of the Constitution of India. The respondents in their stand have not been able to dispute the either of two positions that the circular dated 03.01.2007 did not have retrospective effect and no show cause notice was issued to the petitioner before issuance of the impugned order. The text of the impugned order also shows that the circular of 03.01.2007 was only taken into account for cancellation of the caste certificate of the petitioner. The other averments made in the counter affidavit relating to the date of marriage also does not appear to be of much consequences as in any case marriage certificate of the parents of the petitioner is not being disputed. The said certificate itself was issued much before issuance of the caste certificate. 11. In the totality facts and circumstance discussed hereinabove, I find that the impugned orders suffer from illegality, arbitrariness and violation of principles of natural justice. Accordingly, the impugned letter No. 1071 dated 24.08.2007 and Memo No. XIII-1/07-1533 dated 06.09.2007 are quashed and this writ petition is allowed.