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2014 DIGILAW 396 (PAT)

Farzana Sabaff v. State of Bihar

2014-03-31

RAVI RANJAN

body2014
ORDER I have heard the parties and have perused the records of this case. 2. The factual matrix emanating out of the pleadings of the parties which would be necessary for consideration of the case stands enumerated as under:- 3. The petitioner was granted a certificate dated 17.10.2001, as contained in Annexure 2, by the Block Development Officer, Raniganj, declaring her to be belonging to “Shekhara” caste which has been described as extremely backward caste in the resolution no. 756 dated, issued by the Personnel and Administrate Reforms Department, Government of Bihar, Patna. The petitioner, thereafter, contested the election of Mukhiya of Gram Panchayat Baghaily in the year 2006 which was reserved for extremely backward woman candidate. Her nomination was accepted on the basis of her caste certificate as contained in Annexure 2 treating her to be a woman belonging to extremely backward caste. The respondent no. 6 raised objection regarding that at the time of nomination but it was not accepted by the Returning Officer-cum-District Magistrate, Supaul. She was declared elected as Mukhiya of Gram Panchayat, Bagheli. The respondent no. 6, thereafter, made a challenge to her candidature on the basis of the aforesaid caste certificate before the State Election Commission but the same was rejected on the ground that, after completion of election process and declaration of the result, the only remedy available to the respondent no. 6 was to file election petition before the Election Tribunal. Aforesaid order was challenged by the respondent no. 6 before this Court in C.W.J.C. No. 9299 of 2006 which was set aside by a learned Single Judge of this Court vide order dated 05.09.2007 contained in Annexure 3 and the State Election Commission was directed to issue notice to the parties and decide the matter on its merit within a period of two months. While passing such order the Single Bench of this Court had noticed the dispute regarding the grant of certificate showing her to be a member of extremely backward caste candidate and held that the matter relating to qualification or disqualification could be decided by the Election Commission. While passing such order the Single Bench of this Court had noticed the dispute regarding the grant of certificate showing her to be a member of extremely backward caste candidate and held that the matter relating to qualification or disqualification could be decided by the Election Commission. The State Election Commission, thereafter, vide its order dated 27.11.2007, directed the Collector, Araria to verify the correctness of the caste certificate granted to the petitioner and at the same time it had also preferred L.P.A. No. 1015 of 2007 challenging the aforesaid order passed by the Single Bench of this Court in C.W.J.C. No. 9299 of 2006. Subsequently, another L.P.A. No. 584 of 2008 also came to be preferred by this petitioner before a Division Bench of this Court. In the meantime, the District Magistrate concerned instituted Miscellaneous Case No. 25 of 2007-2008 upon the direction of the Bihar State Election Commission for verification of the correctness of the caste certificate granted to the petitioner. A final order dated 12.02.2008, as contained in Annexure 1, was passed by the Collector, Araria holding that the concerned caste certificate granted to the petitioner was based on incorrect facts and, accordingly, that was cancelled. The petitioner preferred the present writ application against the aforesaid order. 4. Subsequently, on the basis of the order passed by the Collector contained in Annexure 1, the State Election Commission also appears to have passed the final order a copy of which has been appended as Annexure 20. Upon consideration of the order of cancellation of the caste certificate by the Collector the petitioner was disqualified from holding the post of Mukhiya treating the concerned post of Mukhiya to be vacant and to be filled up in accordance with the law and procedure. The petitioner filed I.A. No. 2364 of 2008 for amendment in the prayer portion of the writ petition as he wished to challenge the aforesaid order of the State Election Commission also which was based on the impugned order contained in Annexure 1. 5. However, in the meantime a Division Bench of this Court heard L.P.A. No. 1015 of 2007(preferred by the State Election Commission) as well as L.P.A. No. 584 of 2008(preferred by the petitioner). Both the appeals were disposed of by a common judgment. The appeals were allowed and the judgment and order under appeals was set aside. 5. However, in the meantime a Division Bench of this Court heard L.P.A. No. 1015 of 2007(preferred by the State Election Commission) as well as L.P.A. No. 584 of 2008(preferred by the petitioner). Both the appeals were disposed of by a common judgment. The appeals were allowed and the judgment and order under appeals was set aside. The writ petition, i.e., C.W.J.C. No. 9299 of 2006 was dismissed and at the same time, the order of the State Election Commission rendered in compliance of the direction contained in the aforesaid judgment and order under appeal (Annexure 20 to I.A. No. 2364 of 2008) was also set aside. 6. In the aforesaid background of the facts, the petitioner did not press I.A. No. 2364 of 2008 as the concerned order of the State Election Commission was already set aside by the Division Bench of this Court as discussed above. 7. Learned counsel for the petitioner has raised a question that, in view of the entire proceeding of the State Election Commission for passing an order after verification of the caste certificate of the petitioner on the basis of the direction of a Single Bench of this Court contained in Annexure 3 having been held to be without jurisdiction, and, thereafter, the final decision taken on the basis of the order of the Collector, which was also at the behest of the State Election Commission, having already been set aside on the ground that the proceeding before the Election Commission was without jurisdiction as disqualification mentioned in section 135 of the Bihar Panchayati Raj Act, 2006 could not have been gone into by the State Election Commission, thus, the final order passed by the State Election Commission for disqualification of the petitioner was a decision rendered by a forum non juris, would also invalidate the order passed by the Collector which was also part of the same proceeding as admittedly the State Election Commission had asked the Collector to verify the caste certificate of the petitioner for the aforesaid purpose and, ultimately, it was his decision that had formed the basis of the final order that was set aside by the Division Bench. It is contended that order of the Collector would also be without jurisdiction and, thus, the same also requires to be quashed and set aside. 8. It is contended that order of the Collector would also be without jurisdiction and, thus, the same also requires to be quashed and set aside. 8. It is next contended that the impugned order passed by the Collector is also in violation of the direction of the Apex Court in Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and aothers [(1994) Supreme Court Cases, 241]. It is submitted that the Hon’ble Supreme Court has issued 15 directions for verification/scrutiny of a caste certificate granted either to the Scheduled Caste/Scheduled Tribe or Backward Classes. The Apex Court directed all the State Governments to constitute a committee for such verification/scrutiny and has also specifically named the particular authorities which would be the members of the committee. It is contended that the impugned verification by the Collector which is admittedly and apparently against the direction of the Apex Court, would have to be held to be without jurisdiction. 9. Mr. Sanjay Kumar, learned counsel for the petitioner, placed reliance upon another decision of the Apex Court in Dayaram Vs. Sudhir Batham and others [(2012) 1 Supreme Court Cases, 333] to demonstrate that the aforesaid decision of the Two Judges Bench of the Supreme Court was again considered by Three Judges Bench on the issue as to whether certain direction given by the Apex Court in Kumari Madhuri Patil (supra) is legislative in nature? An issue was raised that in case a Court feels that some law should be made then it can only make a recommendation to that effect to the legislature but it cannot itself legislate. However, Three Judges Bench of the Hon’ble Supreme Court after due consideration has opined that the scheme laid down in Kumari Madhuri Patil (supra) would continue till it is replaced by a suitable legislation since such scheme was only as a stop gap arrangement specially framed in view of urgent need requiring scrutiny of the certificates with utmost expedition and promptitude. The Apex Court, while passing such guideline, had observed that the genuine candidates were being denied admission to the educational institutions or appointments for want of social status certificates and ineligible or spurious candidates have gained entry by presenting false certificates. 10. Thus, it is contended that only option available either for the State Election Commission or for the respondent no. 10. Thus, it is contended that only option available either for the State Election Commission or for the respondent no. 6, was to approach the scrutiny committee constituted by the State Government in compliance of the direction in Kumari Madhuri Pali (supra). 11. Counter affidavits have been filed on behalf of the respondent nos. 2 and 3 and also the respondent no. 4 defending the impugned order passed by the Collector. On the issue of constitution of scrutiny committee, raised by the petitioner during earlier hearings, a counter affidavit was also filed on behalf of the Principal Secretary, General Administration Department, Government of Bihar stating that the State Government in compliance of the direction of the Apex Court contained in Civil Appeal No. 5854 of 1994 (Kumari Madhuri Patil and others Vs. Additional Commissioner, Scheduled Tribes and others), has already constituted a Directorate/Committee dealing with the cases of Scheduled Caste and Scheduled Tribes vide memo no. 3887 dated 08.11.2007. However, on a question being asked to learned Additional Advocate General No. 11 as to whether a Committee of Directorate formed for concerned purpose for scrutiny of the certificate with respect to the Scheduled Caste/Scheduled Tribes would be able to verify the certificate granted to the Backward Classes or Extremely Backward Classes, an apparent lacunae appeared and adjournment was sought for rectification specially in view of the direction no. 4 given by the Apex Court in Kumari Madhuri Patil (supra) that for scrutiny of Backward Classes certificate the committee would have to be constituted consisting an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, the Director, Social Welfare/Tribunal Welfare/Backward Class Welfare, has not been included in the committee. Thereafter, a supplementary counter affidavit has been filed on behalf of the Principal Secretary, General Administration Department, Government of Bihar appending therewith another resolution dated 05.02.2014 as Annexure A with a statement that now a separate committee has been formed for making inquiry with respect to caste certificates granted to the Backward Classes and Extremely Backward Classes. There is a direction in Annexure A for immediate publication of this decision of the Government in the official Extra-Ordinary Gazette. 12. Upon consideration of the rival contentions, I find force in the submission made on behalf of the petitioner. The order contained in Annexure 1 passed by the Collector would be invalid on both counts. There is a direction in Annexure A for immediate publication of this decision of the Government in the official Extra-Ordinary Gazette. 12. Upon consideration of the rival contentions, I find force in the submission made on behalf of the petitioner. The order contained in Annexure 1 passed by the Collector would be invalid on both counts. The first ground would be that it was a part of a proceeding by which the State Election Commission was making scrutiny of the caste certificate granted in favour of the petitioner in compliance of a direction given by the Single Bench vide Annexure 3. The aforesaid proceeding having been found by the Division Bench to be without jurisdiction as being pursued by a forum non juris, in my considered opinion, that would definitely include the proceeding before the Collector that was initiated on the basis of direction of the State Election Commission. The order impugned would have to be quashed and set aside for another reason also as the same is in violation of the direction of the Apex Court contained in Kumari Madhuri Patil (supra) as well as Dayaram (supra). It has been submitted on behalf of the petitioner that if the Election Commission wanted verification/scrutiny of the caste certificate, it could have referred the matter to the scrutiny committee concerned. However, the scrutiny committee was also not available at that point of time but, in my considered opinion, the inaction on the part of the State Government or its authority would not confer any jurisdiction upon the Collector for scrutiny of the caste certificate in complete violation of the direction of the Hon’ble Supreme Court rendered in Kumari Madhuri Patil (supra). 13. In above view of the matter, the impugned order as contained in Annexure 1 is quashed and set aside. 14. However, now the question is as to whether this Court should stop here or it should direct the newly formed scrutiny committee to consider to verify/scrutinize the caste certificate of the petitioner? 15. The petitioner has taken a plea that she belongs to “Shekhara” caste and such certificate was not only granted to her but also to her own uncle, copies of which have been appended as Annexures 13 series to the writ petition. It has been contended that the Collector, under complete misconception, has held that the petitioner appears to be “Sheikh” and not to “Shekhara” community. It has been contended that the Collector, under complete misconception, has held that the petitioner appears to be “Sheikh” and not to “Shekhara” community. It has been urged that though the title “Sheikh” stands it is mentioned in the Survey Records in column of caste the word “Muslim” has been recorded which is obviously a community and not a caste, thus, the impugned order appears to have passed under gross misconception. Learned counsel submitted that in identical situation the Apex Court in Sudhakar Vithal Kumbhare Vs.State of Maharashtra and others [(2004) 9 Supreme Court Cases, 481] had set aside the judgment and order of the concerned High Court and had further ordered for reinstatement of the petitioner on the promoted post of Assistant Engineer till the matter is referred by the Maharashtra Electricity Board to scrutiny committee, however, the petitioner was allowed to continue on the post till the matter is decided by such committee. Thus, it has been contended that the order impugned should be quashed and set aside only since the petitioner’s tenure of Mukhiya has already expired also, since the petitioner is not in any service, there would be no requirement for scrutiny/verification by the scrutiny committee at this juncture. Thus, a liberty should be granted to the respondents to approach the committee if they want to challenge the certificate of the petitioner. 16. Prima facie, the aforesaid submission appears to be attractive but upon deeper scrutiny it appears that the caste certificate has been granted to the petitioner by the Block Development Officer which is also in violation of the direction of the Apex Court as contained in Kumari Madhuri Patil (supra). The first direction given by the Apex Court in Kumari Madhuri Patil (supra) is reproduced as under:— “(1) The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the officer, taluk or mandal level.” 17. The first direction given by the Apex Court in Kumari Madhuri Patil (supra) is reproduced as under:— “(1) The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the officer, taluk or mandal level.” 17. It is apparent that an application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or the Deputy Commissioner whereas the petitioner’s certificate has admittedly been granted by the Block Development Officer which cannot be held to be granted by Revenue Sub-Divisional Officer and Deputy Collector or the Deputy Commissioner and as such, it appears that such certificate was also granted in violation of the direction of the Apex Court in Kumari Madhuri Patil (supra). Otherwise also, it would be better that the matter should be scrutinized by the newly constituted committee to remove the doubt of cloud permanently. 18. As a result, this writ application is allowed and impugned order as contained in Annexure 1 is quashed and set aside. 19. However, the newly formed scrutiny committee for Backward Classes, consltituted vide notification contained in Annexure A to the Supplementary counter affidavit, should examine and verify/scrutinize the caste certificate granted to the petitioner. While doing so, the committee concerned would follow the direction given in Kumari Madhuri Patil (supra) and grant opportunity to the petitioner as well as the respondents and would consider all the relevant documents and, thereafter, would consider all the submissions made by the petitioner and the respondents and take a final decision within a period of three months from the date of receipt/production of a copy of this order. The committee would be required to issue notice to the party/parties concerned and grant reasonable opportunity to all concerned before taking such decision. However, it is made clear that if the parties including the petitioner do not co-operate then the committee would be at liberty to take a decision in the matter on its own merit and in accordance with law after consideration of all the materials available on the record. It is further made clear that the committee would be required to examine the fact and come to its own conclusion regarding the claim of the petitioner of belonging to extremely backward caste. It is further made clear that the committee would be required to examine the fact and come to its own conclusion regarding the claim of the petitioner of belonging to extremely backward caste. Petitioner’s claim should not be rejected merely on the ground that the caste certificate granted to her does not appear to have been issued in her favour by a competent authority as has been observed by this Court. ?