Jharkhand High Court
Madhusudan vs The State Of Jharkhand on 14 June, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 571 of 2017
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[Against the judgment dated 11th October 2017 passed by the learned Single Judge of
this Court in W.P.(C) No. 3288 of 2017]
Madhusudan, s/o late Rameshwar Paswan, r/o PO & PS Argora, District
Ranchi. ... Appellant
Versus
1. The State of Jharkhand
2. Principal Secretary, Welfare Department, Govt. of Jharkhand, PO
Dhurwa, PS Dhurwa, Project Bhawan, Ranchi, Jharkhand
3. Caste Scrutiny Committee through its Chairman, PO Dhurwa, PS
Dhurwa, Project Bhawan, Ranchi, Jharkhand ... Respondents
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(Heard on 05th & 12th April 2022)
PRESENT
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Ajit Kumar, Sr. Advocate
Ms. Aprajita Bhardwaj, Advocate
For the State : Mr. Sachin Kumar, AAG-II
Mr. Gaurav Raj, AC to AAG-II
JUDGMENT
CAV on 12th April 2022 Pronounced on 14th June 2022
Per, Shree Chandrashekhar, J.
The appellant who was the writ petitioner has questioned legality of
the writ Court's decision which upheld the opinion rendered by the Caste
Scrutiny Committee (in short, CSC) that the caste certificate issued to the
appellant cannot be accepted as valid. The writ Court held that the adoptee
who did not suffer the hardships of the adoptive family by staying together
and suffering the social sanctions, ridicules and ignominies attached with the
community cannot claim the benefit of reservation merely by virtue of his
adoption.
2. On an allegation that he secured appointment on the post of Deputy
Superintendent of Police by submitting false caste certificate, the appellant
was served a show-cause notice by the State of Jharkhand about 20 years
after he entered in the government service under the erstwhile State of Bihar.
Following the directions issued by the Hon'ble Supreme Court in "Kumari
Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development &
Ors."1, the matter was referred to CSC to verify caste status of the appellant
and the decision of CSC that the caste certificate issued to the appellant
cannot be accepted came to be challenged in W.P(C) No. 3288 of 2017. The
writ Court by an elaborate order discussed various aspects of the case and
finally came to a conclusion that no interference was warranted with the
decision of CSC.
3. The appellant is in appeal against the order dated 11 th October 2017
passed in W.P(C) No. 3288 of 2017 raising inter alia the following grounds;
(i) CSC proceeded in the matter in a mechanical manner and did not advert
to various documents which were prepared decades ago by different
authorities of the Government (ii) enquiry report by the State Scrutiny
Committee, Patna was prepared behind his back and no opportunity was
afforded to him to put forth his defence and (iii) CSC committed serious
error in law in drawing adverse inference against him on the ground that the
Executive Magistrate did not produce the original register.
4. Mr. Ajit Kumar, the learned Senior counsel for the appellant,
contended that the writ Court did not address itself to the relevant issues
arising in the case and dismissed W.P(C) No. 3288 of 2017 without
recording a finding whether CSC rightly ignored numerous documents
prepared decades ago even though genuineness of the same was not under
challenge.
5. The learned Senior counsel relied on the following judgments to
fortify the contentions raised on behalf of the appellant:
(i) "Kumari Madhuri Patil"1
(ii)"Valsamma Paul (Mrs.) v. Cochin University & Ors."2
(iii) "Basavarajappa v. Gurubasamma"3
(iv) "Dayaram v. Sudhir Batham"4
(v) "Rameshbhai Dabhai Naika v. State of Gujarat"5
1. (1994) 6 SCC 241
2. (1996) 3 SCC 545
3. (2005) 12 SCC 290
4. (2012) 1 SCC 333
5. (2012) 3 SCC 400
(vi)"Ayaaubkhan Noorkhan Pathan v. State of Maharashtra"6
6. Briefly stated, the appellant was born on 21st February 1964 in a
family belonging to Baniya community which was under OBC category in
the erstwhile State of Bihar. Jadunandan Prasad, natural father of the
appellant, was a close friend and neighbour of Rameshwar Paswan who
belonged to scheduled caste community and was issueless. Jadunandan
Prasad who had four sons agreed to give the appellant in adoption to
Rameshwar Paswan and the entire process of adoption was completed on
10th March 1978 in the presence of Mukhiya, villagers and members of both
the families. The appellant was taken into the family of Rameshwar Paswan
and the name of father of the appellant was changed in the School
Admission Register of Government School Kawakol, Nawada, Bihar. On
the basis of the affidavits both dated 4 th April 1979 sworn by the natural
father and adoptive father of the appellant a caste certificate was issued to
him on 25th April 1979 to the effect that he took caste of his adoptive father
who belonged to scheduled caste community. After graduating from Indian
School of Mines, Dhanbad the appellant served as Mining Engineer at
Bharat Coking Coal Limited, Dhanbad till September, 1992. He qualified in
37th Combined Civil Services Examination conducted by Bihar Public
Service Commission and on the basis of a fresh caste certificate issued in the
year 1992 he was inducted in the Bihar Police Service as a scheduled caste
candidate.
7. The State of Jharkhand disputed adoption of the appellant by
Rameshwar Paswan on the grounds that name of the father of the appellant
was struck off in the School Register which appeared to have been done
recently, and that date of birth of the appellant in the affidavits filed by his
natural father and adoptive father were different. It was pointed out that
though both the affidavits were sworn on the same day there was huge gap
in the serial number of both the affidavits which created doubt over
genuinity of the affidavits and, moreover, the original register in which
details of the affidavits are entered was never produced. The State of
Jharkhand took a stand that the appellant failed to demonstrate that proper
procedure of adoption was followed, and that he ever lived with his adoptive
father in his house and performed his last rites. On the contrary, it was
6. (2013) 4 SCC 465
placed before the writ Court that the last rites of Rameshwar Paswan was
performed by Suraj Paswan and the name of natural father of the appellant
was recorded in the voter's list.
8. The first challenge laid by the appellant to the decision of CSC that
his adoption by Rameshwar Paswan in the year 1978 seems to be beyond
the age of adoption is on the ground that evidence in this regard was
collected by the State Scrutiny Committee behind his back and he had no
opportunity to cross-examine the witnesses and produce his own evidence
before a report was transmitted by the State of Bihar. However, this plea
founded on the breach of natural justice must now pale into insignificance
as the writ Court disbelieved the evidence of witnesses examined by the
State Scrutiny Committee of the State of Bihar. The writ Court found that
the witnesses gave different age of the appellant at the time of adoption and,
therefore, held that evidence of the witnesses as regards age of the appellant
at the time of the adoption creates doubt about their knowledge as to the
date of adoption of the appellant. The writ Court came to a conclusion that
adoption of the appellant was not categorically denied by any witness and it
was hard to believe that he was adopted after the age of 15 years. Therefore,
the writ Court proceeded to examine the matter on the premise that at the
time of the adoption the appellant was 14 years of age.
9. On the issue whether the affidavits dated 4th April 1979 sworn by the
natural as well as adoptive fathers of the appellant are in the nature of valid
adoption deed, the writ Court held that there is no requirement in law that
the adoption deed must mandatorily be registered. Placing reliance on the
judgment in "Param Pal Singh v. National Insurance Company & Anr."7 the
writ Court further held that there is no procedure provided in law for a valid
adoption rather an inference as regards the valid adoption can be drawn
from proved facts that a child was given by the natural parents and taken by
the adoptive parents.
10. A reading of the order passed in W.P(C) No. 3288 of 2017 indicates
that adoption of the appellant by a person belonging to scheduled caste has
been accepted as valid adoption by the writ Court. However, the writ Court
held that CSC proceeded on wrong assumption and did not address an
important and crucial issue as to whether the appellant after adoption at the
7. (2013) 3 SCC 409
age of 14 years was entitled to the caste certificate of scheduled caste.
11. In paragraph no.10 of the judgment, the writ Court has held as under:
"10. On perusal of the aforesaid judgment, it is clear that
registration of adoption deed is not mandatorily required. It has
also been held that there is no such legal procedure for a valid
adoption. For a valid adoption, it is required to be proved from
the fact of the case that a child has been given by the natural
parents and taken by the adoptive parents. Thus, it appears that
the CSC proceeded to decide the case of the petitioner on the
basis of wrong assumption. The CSC has not gone to decide a
very important and crucial issue as to whether the petitioner
after adoption at the age of 14 years was entitled to the caste
certificate of 'Scheduled Caste' on the ground that his adoptive
father belonged to Scheduled Caste. Now, the question is as to
whether this Court on the admitted facts available on record,
can exercise the power of judicial review to decide the present
lis......"
12. Mr. Sachin Kumar, the learned Additional Advocate General-II,
submitted that an enquiry was conducted by the State of Bihar and the story
of adoption of the appellant was found not correct. Moreover, in the
proceeding of C.W.J.C No. 14254 of 2001 before Patna High Court the
appellant did not contest the show-cause notice by which he was put to
notice that he could not have claimed employment on the basis of adoption
by a person belonging to scheduled caste community, rather he gave up the
plea of adoption. The learned counsel pointed out that the Letters Patent
Court also held that the decision taken by the State of Bihar to terminate the
services of the writ petitioner as Deputy Superintendent of Police did not
suffer from any legal infirmity.
13. The argument raised on behalf of the State of Jharkhand is that
W.P(C) No. 3288 of 2017 filed by the appellant in this Court was barred by
res judicata. The learned Additional Advocate General-II referred to the
decision in "P. Bandopadhya & Ors. v. Union of India & Ors."8 to fortify
the above submission.
14. The orders passed by Patna High Court in the previous proceedings
taken by the appellant were brought to the notice of the writ Court and the
decisions in C.W.J.C No. 14254 of 2001 and L.P.A. No. 708 of 2002 were
debated before the writ Court. A glance at the writ Court's order in the
present proceeding would, however, reveal that no finding has been
recorded by the writ Court on this issue. Even then, no appeal has been
8. (2019) 13 SCC 42
preferred by the State of Jharkhand on the issue of adoption of the appellant.
Therefore, the plea of res judicata cannot be examined in the appeal
preferred by the appellant.
15. No doubt the State of Jharkhand can very well reiterate its stand taken
before the writ Court even without filing an appeal that adoption of the
appellant by Rameshwar Paswan was not valid. However, I am not inclined
to reopen this issue because the materials brought on record are not
sufficient to undertake such an exercise. In my opinion, without seeking
answer to some of the important issues, such as; (i) whether the appellant
inherited properties of Rameshwar Paswan (ii) whether he is married to a
scheduled caste woman and (iii) whether the children of the appellant are
treated as belonging to scheduled caste community - it would not be proper
and may be unfair and unjust to the appellant if the issue of his adoption is
re-examined after about 44 years. The writ Court's decision on this issue is
based on proper appreciation of the materials laid before the Court and no
interference is required by this Court on this count.
16. The writ Court rightly observed that the crucial issue before CSC was
whether the petitioner (appellant herein) was entitled to the caste certificate
of scheduled caste on the ground that his adoptive father belonged to the
said caste. The writ Court referred to the judgments in "Rameshbhai Dabhai
Naika"5,"Valsamma Paul"2 and "A.S. Sailaja v. Principal, Kurnool Medical
College, Kurnool & Ors."9 to reflect on the object behind reservation under
the Constitution of India that reservation to scheduled caste and scheduled
tribe is rooted in the social history of such caste and community. In the
opinion of the writ Court, the appellant who did not suffer any deprivation
even after his adoption if is allowed to compete with a person who suffered
social indignities and deprivations since the time of his birth, the object of
introducing the scheme of reservation would be frustrated.
17. The writ Court held as under:
"16. In the present case, admittedly, the petitioner was taken in
adoption by a Scheduled Caste family at the age of about 14
years. The petitioner has not been able to establish that he
became part and parcel of the adoptive family for all purposes
i.e., social, religious, cultural etc. Rather, the case in hand
discloses that after being adopted by a scheduled caste person,
the scheduled caste certificate was obtained by the petitioner
and used for educational and employment purposes. The
9. AIR 1986 AP 209
petitioner has also failed to establish that after his adoption he
became part of the homogeneous group of scheduled caste
community and suffered all the social sanctions,
ridiculous/ignominy as well as the handicaps being an integral
member of scheduled caste society. On the contrary, it is the
admitted case of the petitioner that he after adoption, got a
scheduled caste certificate and thus, he certainly stood higher
amongst the other candidates of that category. Moreover, as per
the assertion of the petitioner himself, he, even after the
adoption by a Scheduled Caste person, continued to study in the
same school and obtained best possible higher education which
itself indicates that he had never suffered any deprivation even
after the adoption. The object of introducing the scheme of
reservation is to provide proper representation to the oppressed
and underprivileged class of citizens in public employment and
if any person who had an advantageous start in life for a
considerable age (in the present case - 14 years) is allowed to
compete with a person who, since the time of birth has suffered
social indignities and deprivation, the object of introducing the
scheme of reservation is frustrated."
18. The writ Court has further held as under:
"19. ........In the matter of adoption "Advantageous start in life"
is the key factor for determination of entitlement for the benefit
of reservation on the basis of claim of being a member of
Scheduled Caste. Once it is evident that a person has
advantageous start in life i.e., he/she has spent a considerable
period in the family of a non-scheduled caste and thereafter
came into the scheduled caste family, does not entitle him/her
for the benefit of reservation meant for that caste. However, if a
child has been adopted at a very early age by a scheduled caste
family, then he/she will be entitled to the benefit of reservation
meant for that category as there is a high chance of his/her
suffering with the same disability as that of the adoptive family."
19. Mr. Ajit Kumar, the learned Senior counsel for the appellant, assailed
the writ Court's decision on the ground that "Valsamma Paul"2 is no longer
a good law. This argument has been raised with reference to the
observations made in "Rameshbhai Dabhai Naika"5.
20. In "Rameshbhai Dabhai Naika"5 the Hon'ble Supreme Court
observed that it is wrong and incorrect to read "Valsamma Paul"2, "Punit
Rai v. Dinesh Chaudhary"10 and "Anjan Kumar v. Union of India"11 cases as
laying down the rule that in an inter-caste marriage or a marriage between a
tribal and a non-tribal, the child must always be deemed to take his/her caste
from the father regardless of the attending facts and circumstances of each
case.
21. "Valsamma Paul"2 who was a Syrian Catholic woman laid a claim for
appointment to a post of lecturer which was reserved for backward class
10. (2003) 8 SCC 204
11. (2006) 3 SCC 257
fishermen (Latin Catholics) to which caste her husband belonged. It was
held that the wife irrespective of her caste or religion becomes member of
the caste of her husband but a non-reserved class person transplanted by
adoption or any other voluntary act of the family of a reserved class
category would not ipso facto become entitled to claim reservation as he/she
had advantageous start in life.
22. "Rameshbhai Dabhai Naika"5 was issued caste certificate on the
basis of his mother's caste who came from the scheduled tribe community.
His father was a Kshatriya which is a non-tribal community in the State of
Gujarat. The tribal certificate issued to him was withdrawn on the ground
that he was the son of a Kshatriya father. The High Court proceeded on the
premise that a child born out of inter-caste marriage between a tribal and
non-tribal would take his/her caste from the father and, therefore, held that
the caste certificate issued to him was rightly cancelled by the Caste
Scrutiny Committee.
23. The Hon'ble Supreme Court held that in an inter-caste marriage or a
marriage between a tribal and a non-tribal the determination of the caste of
the offspring is generally a question of fact to be decided on the basis of the
facts and circumstances in the case, as any determination in this regard
cannot be in complete disregard to attending facts of the case. The Hon'ble
Supreme Court observed that "Valsamma Paul"2 does not lay down a law of
universal application that in every case of marriage of a non-tribal woman
with a tribal man the woman would take her husband's caste. The difficulty
in accepting such a proposition in law has been dealt with in paragraph nos.
48 and 55 of the judgment which are extracted below:
"48. It is also clear to us that taking it to the next logical step
and to hold that the offspring of such a marriage would in all
cases get his/her caste from the father is bound to give rise to
serious problems. Take for instance the case of a tribal woman
getting married to a forward caste man and who is widowed or
is abandoned by the husband shortly after marriage. She goes
back to her people and the community carrying with her an
infant or may be a child still in the womb. The child is born in
the community from where her mother came and to which she
went back and is brought up as the member of that community
suffering all the deprivations, humiliations, disabilities and
handicaps as a member of the community. Can it still be said
that the child would have the caste of his father and, therefore,
not entitled to any benefits, privileges or protections sanctioned
by the Constitution.
.......................................................................................
55.In an inter-caste marriage or a marriage between a tribal
and a non-tribal there may be a presumption that the child has
the caste of the father. This presumption may be stronger in the
case where in the inter-caste marriage or a marriage between a
tribal and a non-tribal the husband belongs to a forward caste.
But by no means the presumption is conclusive or irrebuttable
and it is open to the child of such marriage to lead evidence to
show that he/she was brought up by the mother who belonged to
the Scheduled Caste/Scheduled Tribe. By virtue of being the son
of a forward caste father he did not have any advantageous start
in life but on the contrary suffered the deprivations, indignities,
humilities and handicaps like any other member of the
community to which his/her mother belonged. Additionally, that
he was always treated as a member of the community to which
her mother belonged not only by that community but by the
people outside the community as well."
24. "Valsamma Paul"2 was followed in "State of Tripura v. Namita
Majumdar [Barman]"12 and "Sandhya Thakur v. Vimla Devi Kushwah"13
and it seems to me that as regards grant or denial of the benefit of
reservation in the public employment "Valsamma Paul"2 has been approved
in the subsequent judgments including "Nityanand Sharma v. State of
Bihar"14, "Meera Kanwaria v. Sunita"15, "Anjan Kumar"11 and "Charu
Khurana v. Union of India"16. In my opinion, the doubt expressed in
"Rameshbhai Dabhai Naika"5 was entirely on a different issue and,
moreover, "Valsamma Paul"2 has not been overruled expressly or impliedly
in any subsequent judgment by the Hon'ble Supreme Court.
25. Broadly, there are three category of cases viz. inter-caste marriage,
adoption of a child and right to contest election from a reserved
constituency which invited attention of the Courts to decide the claims
seeking benefit of reservation on the basis of marriage or adoption. The
Hon'ble Supreme Court while dealing with these issues laid emphasis on the
logic behind reservation for scheduled caste, scheduled tribe and other
backward class of citizen in public employment. These judgments provide
valuable guidelines to the High Courts to deal with the claim of reservation
arising from marriage or adoption.
26. In "Meera Kanwaria"15 the Hon'ble Supreme Court held that a
different rule applies when a claim in change of caste is made on the basis
of marriage in a ST/SC community and the general Hindu law that the wife
12. (1998) 9 SCC 217
13. (2005) 2 SCC 731
14. (1996) 3 SCC 576
15. (2006) 1 SCC 344
16. (2015) 1 SCC 192
takes the caste of her husband may not be applicable as the Special Class
community requires protective discrimination and affirmative action.
"Meera Kanwaria"15 adopted the very same logic of "Valsamma Paul"2
that a high caste person who did not suffer any social or educational
backwardness in life cannot claim reservation by virtue of marriage with a
reserved category person.
27. In "Meera Kanwaria"15 the Hon'ble Supreme Court has observed as
under:
"24. It is, therefore, beyond any doubt or dispute that a person
who is a high-caste Hindu and not subjected to any social or
educational backwardness in his life, by reason of marriage
alone cannot ipso facto become a member of the Scheduled
Caste or the Scheduled Tribe. In the absence of any strict proof
he cannot be allowed to defeat the very provisions made by the
State for reserving certain seats for disadvantaged people."
28. "Namita Majumdar"12 is another case in which change in caste status
on the ground of marriage with a reserved category person was not
approved. Namita Majumdar who was born in a forward caste family
claimed scheduled caste status by virtue of her marriage with a person
belonging to Namsudra community which was recognized as scheduled
caste in the State of Tripura. She was issued a caste certificate to the effect
that she belonged to Namsudra community and on that basis her name was
recommended by the Tripura Public Service Commission for appointment to
the post of Stenographer (Junior Grade) in the reserved category. But before
the appointment letter was issued a complaint was received regarding
genuineness of her caste certificate. It was found in course of the enquiry
that she had concealed the caste status of her father and the caste certificate
was issued to her solely on the basis of her marriage with a scheduled caste
person. She was therefore offered appointment under general category but
after joining the service she filed a writ petition claiming benefit on the basis
of the caste certificate. The writ petition came to be allowed on the ground
that she was entitled to claim the benefit of reservation by virtue of her
marriage to a person belonging to a scheduled caste community on account
of which she shall be deemed to belonging to scheduled caste community.
29. In "Namita Majumdar"12 the Hon'ble Supreme Court has observed
as under:
"6...........The submission is that a person by reason of her/his
marriage to a person belonging to a Scheduled Caste is not
entitled to claim the benefit of a Scheduled Caste. The learned
counsel has placed reliance on the decision of this Court in the
case of Valsamma Paul v. Cochin University. The appellant, in
that case, was, by birth, a Syrian Catholic, a forward class in
the State of Kerala. She had married a person who was Latin
Catholic, a Backward Class in the said State. It was held that
the said appellant could not claim the benefits under Articles
15(4) and 16(4) of the Constitution. Dr N.M. Ghatate, learned
Senior Counsel appearing for the respondent, has submitted that
the said decision in Valsamma Paul case needs reconsideration
and has pointed out that in the context of election law this Court
has recognised that the benefit of reservation for Scheduled
Castes can be availed of by a person on the basis of marriage.
The said decisions have been taken note of and distinguished in
the decision in Valsamma Paul case. We do not find any reason
to take a view different from that taken in Valsamma Paul case.
It must, therefore, be held that the respondent cannot be
declared to be entitled to the benefits of a Scheduled Caste on
the basis of her marriage to a person belonging to a Scheduled
Caste."
30. "Sobha Hymavathi Devi v. Setti Gangadhara Swamy" 17 which is a
case of reservation of seats in the Legislative Assembly under Article 332 of
the Constitution of India discusses in some detail the effect of a non-tribal
marrying a scheduled tribe person. Sobha Hymavathi was brought up by her
parents as a member of tribal community and she was married to a tribal
man - her father was married to a tribal woman. The election of Sobha
Hymavathi as a member of Andhra Pradesh Legislative Assembly from a
seat reserved for ST candidate was set-aside on the ground that by virtue of
her birth from the marriage of her father with a scheduled tribe woman she
does not take the caste of her mother. The Hon'ble Supreme Court held that
the place of upbringing, education, mode of marriage, documents showing
undisputed caste, place and way of living are relevant factors to be taken
into account for considering whether a woman on her marriage with a
member of a backward community would take the caste of her husband.
31. In "Sobha Hymavathi Devi"17 the Hon'ble Supreme Court has
observed as under:
"10. ......... We have already indicated that there is nothing to
show that the marriage of the appellant with Appala Raju was
sanctioned or approved by the elders of the Bhagatha
community or the Panchayat concerned or was in tribal form or
that the formalities attending such a tribal marriage were
observed and the marriage was performed after obtaining the
approval of the elders of the tribe. Even otherwise, we have
difficulty in accepting the position that a non-tribal who marries
a tribal could claim to contest a seat reserved for tribals. Article
17. (2005) 2 SCC 244
332 of the Constitution speaks of reservation of seats for
Scheduled Tribes in Legislative Assemblies. The object is clearly
to give representation in the legislature to Scheduled Tribe
candidates, considered to be deserving of such special
protection. To permit a non-tribal under cover of a marriage to
contest such a seat would tend to defeat the very object of such a
reservation. The decision of this Court in Valsamma Paul v.
Cochin University supports this view. Neither the fact that a
non-backward female married a backward male nor the fact that
she was recognised by the community thereafter as a member of
the backward community, was held to enable a non-backward to
claim reservation in terms of Article 15(4) or 16(4) of the
Constitution. Their Lordships after noticing Bhoobum Moyee
Debia v. Ram Kishore Acharj Chowdhry and Lulloobhoy
Bappoobhoy Cassidass Moolchund v. Cassibai held that a
woman on marriage becomes a member of the family of her
husband and thereby she becomes a member of the caste to
which she has moved. The caste rigidity breaks down and would
stand as no impediment to her becoming a member of the family
to which the husband belongs and to which she gets herself
transplanted. Thereafter, this Court noticed that recognition by
the community was also important. Even then, this Court
categorically laid down that the recognition of a lady as a
member of a backward community in view of her marriage
would not be relevant for the purpose of entitlement to
reservation under Article 16(4) of the Constitution for the
reason that she as a member of the forward caste, had an
advantageous start in life and a marriage with a male belonging
to a backward class would not entitle her to the facility of
reservation given to a backward community. The High Court
has applied this decision to a seat reserved in an election in
terms of Article 332 of the Constitution. We see no reason why
the principle relating to reservation under Articles 15(4) and
16(4) laid down by this Court should not be extended to the
constitutional reservation of a seat for a Scheduled Tribe in the
House of the People or under Article 332 in the Legislative
Assembly. The said reservations are also constitutional
reservations intending to benefit the really underprivileged and
not those who come to the class by way of marriage........."
32. The decisions in "Namita Majumdar"12 and "Sobha Hymavathi
Devi"17 specifically refer to "Valsamma Paul"2 to reach a decision that
merely by virtue of marriage one cannot claim benefit of reservation and
what is necessary for a person transplanted into reserved category by
marriage is to show that he/she had undergone the same handicaps and
suffered the same disadvantages, disabilities, sufferings etc. which any
person of the same community suffers since birth.
33. "Anjan Kumar"11 is another case in which the child was denied the
caste status of his mother who belonged to scheduled tribe on the ground
that the child was brought up in the environment of forward caste
community of his father.
34. In "Anjan Kumar"11 the Hon'ble Supreme Court has observed as
under:
"14. In view of the catena of decisions of this Court, the
questions raised before us are no more res integra. The
condition precedent for granting tribe certificate being that one
must suffer disabilities wherefrom one belongs. The offshoots of
the wedlock of a tribal woman married to a non-tribal husband
--Forward Class (Kayastha in the present case) cannot claim
Scheduled Tribe status. The reason being such offshoot was
brought up in the atmosphere of Forward Class and he is not
subjected to any disability. A person not belonging to the
Scheduled Castes or Scheduled Tribes claiming himself to be a
member of such caste by procuring a bogus caste certificate is a
fraud under the Constitution of India. The impact of procuring
fake/bogus caste certificate and obtaining appointment/
admission from the reserved quota will have far-reaching grave
consequences. A meritorious reserved candidate may be
deprived of reserved category for whom the post is reserved.
The reserved post will go into the hands of non-deserving
candidate and in such cases it would be violative of the mandate
of Articles 14 and 21 of the Constitution."
35. Similarly, in "Sandhya Thakur"13 the Hon'ble Supreme Court held
that a person who by birth did not belong to a backward class community
would not be entitled to contest a seat reserved for the said community
merely on the basis of marriage to a person of that community.
36. In "Sandhya Thakur"13 the Hon'ble Supreme Court has observed as
under:
"2. In the light of the decision in Valsamma Paul v. Cochin
University and our decision rendered today in Sobha Hymavathi
Devi v. Setti Gangadhara Swamy, which was heard along with
this appeal, it must be held that the appellant, who by birth did
not belong to a backward class or community, would not be
entitled to contest a seat reserved for a backward class or
community, merely on the basis of her marriage to a male of
that community. Therefore, it is not possible to accept the
argument that the appellant was entitled to contest a seat
reserved for a backward community merely because of her
marriage to a person belonging to the Namdev community or
caste........."
37. What essentially flows from the aforesaid judgments is that there is
no fundamental right to seek reservation in public employment by any class
or community of people. The Constitution of India permits the State to
adopt affirmative action for such backward classes of people who were
denied in the past access to government services on account of their
inability stemming from various discriminatory practices which resulted in
their social and economic backwardness. Therefore reservation in the public
employment was conceived as a measure to achieve the Constitutional
mandate of equality. The legal effect of giving a child in adoption is to
transfer the child from the family of his birth to the family of his adoption
and as held by the Hon'ble Supreme Court in "Basavarajappa"3 on
adoption the adopted child would become a coparcener in the adopted
family and entitle to his coparcenary interest in the ancestral properties held
by the adoptive family. However, no right to claim reservation springs
automatically merely by virtue of adoption.
38. The following passage in "Indra Sawhney v. Union of India"18 (in the
dissent of Hon'ble Justice Dr. T.K. Thommen) provides valuable insight to
reach a conclusion that merely by virtue of marriage or adoption a person
belonging to general class of people would not automatically become
entitled for the benefit of reservation in public employment:
"256. The makers of the Constitution were fully conscious of the
unfortunate position of the Scheduled Castes and the Scheduled
Tribes. To them equality, liberty and fraternity are but a dream;
an ideal guaranteed by the law, but far too distant to reach; far
too illusory to touch. These backward people and others in like
positions of helplessness are the favoured children of the
Constitution. It is for them that ameliorative and remedial
measures are adopted to achieve the end of equality. To permit
those who are not intended to be so specially protected to
compete for reservation is to dilute the protection and defeat the
very constitutional aim."
39. The appelllant who was born in OBC family had a better start in life
than what he could have got as a member of the scheduled caste community
and even after his adoption in scheduled caste family he contined to enjoy
the same privileges that he had been enjoying before his adoption. The
appellant failed to demonstrate that his adoptive family was rich enough to
provide him education in the same school and bear the cost of Mining
Engineering course which he completed in the year 1986. He never lived
with his adoptive family and did not perform the last rites of his adoptive
father. For the sake of argument this can be said that the appellant could not
have had the thought of reservation at the time of his adoption but the
attending circumstances in the case do not support the plea set up by him.
The writ Court rightly held that the appellant failed to establish that after his
adoption he became part of the homogeneous group of scheduled caste
community and suffered all social sanctions, ridicules, ignominies and
handicaps being an integral member of the scheduled caste community.
40. Reverting back to the report dated 7th June 2017 of CSC which was
18. 1992 Supp. (3) SCC 217
challenged before the writ Court on the ground of procedural irregularity
and non-consideration of relevant materials, I find that in his defence the
appellant sought to rely on the following documents before CSC:
a) Photo copy of certificate issued by Bihar School Examination
Board.
b) Photo copy of letter given by Birendra Kumar Singh.
c) Photo copy of certificate issued by Mukhiya, Village Panchayat,
Sokhodevara.
d) Photo copy of certificate issued by Suresh Kumar Singh, the then
Mukhiya.
e) Photo copy of School Admission Register.
f) Photo copy of School Leaving Certificate.
g) Photo copy of Caste certificate issued on 25 th April 1979 by Block
Development Officer, Kawakole.
h) Photo copy of Dispatch Register of Caste certificate.
i) Photo copy of Caste certificate issued on 5 th February 1992 by
Block Development Officer, Kawakole, Nawada.
j) Photo copy of Caste certificate issued on 6 th February 1992 by
Sub- Divisional Officer, Nawada.
k) Photo copy of practical experience issued by Chief Inspector,
Mines. (in 4 pages).
l) Photo copy of Gazette of India which is related to adoption.
m) Photo Copy of the guidelines issued by the Government of India as
regards issuance of caste certificate.
41. Mr. Ajit Kumar, the learned Senior counsel for the appellant, referred
to the judgment in "Ayaaubkhan Noorkhan Pathan"6 to submit that a
presumption of validity is attached to caste certificate issued by the
competent authority and on mere doubt or suspicion its invalidity cannot be
inferred. The submission made at bar was that CSC could not have dug deep
into the factual aspect and ignored various documents issued by the
competent authority of the Government which found the appellant
belonging to scheduled caste.
42. The powers of judicial review of the High Court under Article 226 of
the Constitution of India are concerned with legality, irrationality and
procedural impropriety of the orders passed by a statutory
authority/Tribunal. It is well-settled that where it appears to the writ Court
that the subordinate Tribunal has excluded from consideration a relevant
material which ought to have been considered, or it has considered
irrelevant or extraneous materials which led the Tribunal to a wrong
conclusion, the writ Court may quash the order but it is not every finding of
fact or sufficiency of evidence which can be examined by the High Court in
exercise of the jurisdiction under Article 226 of the Constitution of India.
43. In "Syed Yakoob v. K.S. Radhakrishnan"19 the Hon'ble Supreme Court
held that the findings of fact reached by the inferior Court or Tribunal
cannot be reopened or questioned in writ proceedings. The Hon'ble Supreme
Court has observed as under:
"7. ...... A writ of certiorari can be issued for correcting errors
of jurisdiction committed by inferior courts or tribunals: these
are cases where orders are passed by inferior courts or
tribunals without jurisdiction, or is in excess of it, or as a result
of failure to exercise jurisdiction. A writ can similarly be issued
where in exercise of jurisdiction conferred on it, the Court or
Tribunal acts illegally or improperly, as for instance, it decides
a question without giving an opportunity to be heard to the
party affected by the order, or where the procedure adopted in
dealing with the dispute is opposed to principles of natural
justice. There is, however, no doubt that the jurisdiction to issue
a writ of certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by the
inferior Court or Tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ proceedings.
An error of law which is apparent on the face of the record can
be corrected by a writ, but not an error of fact, however grave it
may appear to be. ......"
44. The argument raised on behalf of the appellant cannot be accepted
particularly in view of the indisputed facts of the case. This Court has not
been shown that there was a law or guidelines issued by the State of Bihar
following which caste certificates were issued to the appellant in the years
1979 and 1992. This has also not been brought on record that any enquiry
was conducted by the competent authority before caste certificates were
issued to the appellant. In "Dayaram"4 the Hon'ble Supreme Court held that
if there were to be a legislation governing or regulating grant of caste
certificate, and if caste certificates were issued after due and proper enquiry,
such caste certificates will not call for verification by the Scrutiny
Committee. On the similar lines is the judgment in "Ayaaubkhan Noorkhan
Pathan"6 wherein the Hon'ble Supreme Court held that a caste certificate
issued by the competent authority after following due procedure need not be
verified again by CSC as in the ordinary course of business there shall be a
presumption as to validity of the caste certificate under section 114
Illustration (e) of the Indian Evidence Act. In the present case, the admitted
position seems to be that on the basis of the affidavits filed by the natural
19. AIR 1964 SC 477
and adoptive fathers of the appellant caste certificates were issued. There is
nothing on record to show that following the guidelines issued by the
Government of India which were produced before CSC any kind of enquiry
was conducted when caste certificates were issued to the appellant.
45. Furthermore, the allegation that CSC did not call upon the appellant
to lead evidence is without any substance inasmuch as on 4 th March 2016
his statement was recorded and he produced several documents which are
referred to and considered in the report dated 7 th June 2017 of CSC. These
documents were issued on the basis of the caste certificates issued to the
appellant and, therefore, genuineness of such documents could not have any
bearing on the enquiry conducted by CSC. The final conclusion of CSC has
been accepted by the writ Court and I do not find any ground to differ with
decision of the writ Court. To fortify my conclusion, I would refer to
"Kumari Madhuri Patil"1 wherein the Hon'ble Supreme Court has observed
as under:
"15. The question then is whether the approach adopted by the
High Court in not elaborately considering the case is vitiated by
an error of law. High Court is not a court of appeal to
appreciate the evidence. The Committee which is empowered to
evaluate the evidence placed before it when records a finding of
fact, it ought to prevail unless found vitiated by judicial review
of any High Court subject to limitations of interference with
findings of fact. The Committee when considers all the material
facts and records a finding, though another view, as a court of
appeal may be possible, it is not a ground to reverse the
findings. The court has to see whether the Committee considered
all the relevant material placed before it or has not applied its
mind to relevant facts which have led the Committee ultimately
record the finding. Each case must be considered in the
backdrop of its own facts."
46. Mr. Ajit Kumar, the learned Senior counsel, would submit that all
along the appellant was treated as scheduled caste candidate and even
though he would have qualified for Bihar Administrative Service under
OBC category which was his original caste he opted for Bihar Police
Service under scheduled caste category. This plea has been raised on the
ground that cut-off marks for the general category candidate in the 37th
Combined Civil Services Examination conducted by Bihar Public Service
Commission was 588 marks and the last selected candidate under OBC
category of the Bihar Administrative Service had secured 578 marks,
whereas the appellant was awarded 583.5 marks in the said competitive
examination. Plainly speaking, a plea in equity has been raised to contend
that after so many years the caste status of the appellant by virtue of
adoption could not have been doubted.
47. Jill E. Martin has explained equity as an expression with many
meanings. The concept of equity has its roots in the principles of justice and
good conscience. In legal parlance, equity is body of rules which were
evolved to mitigate severity of the rules of common law. In many countries,
strict rules of law have given way to the principles of equity in order to
avoid unwarranted hardship. However, in India, the Courts have adopted the
Latin maxim dura lex sed lex which means "the law is hard but it is the
law" to resolve any conflict between law and equity. In "Madamanchi
Ramappa v. Muthaluru Bojjappa"20 the Hon'ble Suprme Court observed
that what is administered in the Courts is justice according to law and
considerations of fair play and equity howsoever important they may be
must yield to clear and express provisions of the law. The judgments of the
Hon'ble Supreme Court in "Valsamma Paul"2 and other cases laying down
the law on the subject are clear and hold in unambiguous words that no
person can claim the benefit of reservation merely by virtue of marriage or
adoption. The equitable considerations which were highlighted by the
learned Senior counsel for the appellant cannot be resorted to attach validity
to the caste certificate issued to the appellant - though, this plea may be
raised to challenge the order of termination from service.
48. In view of the aforesaid discussions, I find no ground to interfere with
the writ Court's order and, accordingly, L.P.A. No. 571 of 2017 is dismissed
but without costs.
Per, Ratnaker Bhengra, J.
I am in agreement with the conclusions of Shree Chandrashekhar, J.
I would, however, like to add briefly, the approach taken by me, which is
essentially a reiteration of the approach adopted by the learned Single Judge
regarding the implications of late adoption.
50. The writ petition was filed for quashing the order dated 07.06.2017
passed by the Caste Scrutiny Committee ("CSC"), State of Jharkhand,
whereby the claim of the petitioner for Scheduled Caste status was rejected
20. AIR 1963 SC 1633
and the order was forwarded to the Principal Secretary, Home, Prison &
Disaster Management, Government of Jharkhand. The petitioner had further
prayed for quashing the enquiry report dated 29.07.2015 submitted by the
three Member Enquiry Committee on the ground that the Committee has
incorporated distorted facts in its report. In the instant appeal, the appellant
prayed for setting aside the order of the learned Single Judge dated
11.10.2017 passed in WP(C) No. 3288 of 2017 in which though the learned
Single Judge held adoption valid, the claim of caste certificate as Scheduled
Caste was denied on the ground of not being subjected to same social
disability of the adoptive caste.
51. The learned Single Judge has more precisely addressed adoption at
the rather late age of 14 years. The Single Judge has not held adoption of the
writ petitioner invalid, however, expressed concern about statements of
witnesses on the age of the petitioner and observed thus:
"8. Since, there is variance in the statements of the witnesses as
to the age of the petitioner, the same cannot be taken into
consideration by this court while exercising writ jurisdiction
under Article 226 of the Constitution of India. Thus, I am
proceeding with the case by taking into consideration the age of
petitioner as 14 years at the time of adoption as has been
claimed by the petitioner himself............"
52. The learned Single Judge, while deciding the issues, has considered
the late age of the adoption of the appellant, and relied on the judgments of
the Hon'ble Supreme Court in "Valsamma Paul Vs. Cochin University"
reported in (1996) 3 SCC 545 and "A.S. Sailaja Vs. Principal, Kurnool
Medical College, Kurnool & Ors." reported in 1986 AIR (AP) 209, which
had come up before a Bench of the Andhra Pradesh High Court.
53. It is useful to quote the precise paragraphs relied upon in aforesaid
two judgments. The Hon'ble Supreme Court in "Valsamma Paul" (supra) in
paragraph No.34 held as under:
"34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu,
(1995) 3 JT (SC) 563 : (1995 AIR SCW 2224); and R.
Chandevarappa v. State of Karnataka, (1995)7 JT (SC) 93, this
Court had held that economic empowerment is a fundamental
right to the poor and the State is enjoined under Articles 15 (3),
46 and 39 to provide them opportunities. Thus, education,
employment and economic empowerment are some of the
programmes, the State has evolved and also provided
reservation in admission into educational institution, or in case
of other economic benefits under Articles 15 (4) and 46 or in
appointment to an office or a post under the State under Article
16 (4). Therefore, when a member is transplanted into the
Dalits, Tribes and OBCs he/she must of necessity also undergo
same handicaps, be subject to the same disabilities,
disadvantages, indignities or sufferings so as to entitle the
candidate to avail the facility of reservation. A candidate who
had the advantageous start in life being born in forward caste
and had march of advantageous life but is transplanted in
backward caste by adoption or marriage or conversion, does
not become eligible to the benefit of reservation either under
Article 15 (4) or 16(4) of the Constitution as the case may be.
Acquisition of the status of scheduled caste etc, by voluntary
mobility into these categories would play fraud on the
Constitution, and would frustrate the benign constitutional
policy under Articles 15 (4) and 16 (4) of the Constitution."
54. In "A.S. Sailaja" (supra) the precise paragraph Nos. 40, 41 and 42
read as follows:
"40. In the light of law, we have to see whether the petitioner,
on adoption, becomes a member of the Backward Class. As
indicated earlier, we would always keep in mind the
constitutional march of making India secular casteless and
classless State and enough leeway would be allowed for free
mobility and interaction of all sections of the Society into an
integrated class. But we should also keep in mind the
constitutional goals set out. By adopting purposive construction
we would reconcile the right of an individual as against the
society and the society's right. Take an illustration that a child
belonging to a Brahmin is given and taken in adoption to a
Shepard fairly, at an young age, say at first year or second year
or even up to fifth year and the child is brought up in the
adoptive family in the locality lived by the members of the
Backward Class treating as ours son/daughter, presumptive
evidence furnished that the child is assimilated in the
homogeneous group and integrated himself/herself as a member
of such group imbibing all the traits of the group or undergoing
sufferings or subjected to all the disadvantages or handicaps
ignominy which the members of the homogeneous group are
subjected to. In those circumstances, such a child may be
considered to be a member of the homogeneous group though
had the birth in Brahmin caste. But conversely, if a boy or girl
born in the advanced section of the society, had the advantage
of the natural parental brought up in an atmosphere of
affluence, social; cultural and educational advanced start off up
to fairly a good age of 15 years or so and then taken in
adoption, he or she cannot be said to belong to homogeneous
group into which he/she was transplanted by operation of law
nor he/she be said to be socially and educationally backward.
41. In Chitralekhas case (AIR 1964 SC 1823) (supra), Subba
Rao, J., (as he then was) in considering the distinction between
the classes and castes, held: "the juxtaposition of the expression
"backward Classes" and "scheduled Castes" in Art. 15 (4) also
leads to a reasonable inference that the expression "classes" is
not synonymous with castes. It may be that for ascertaining
whether a particular citizen or a group of citizens belongs to a
backward class or not, his or their caste may have some
relevance, but it cannot be either the sole or dominant criterion
for ascertaining the class to which he or they belong. "
(Emphasis supplied ). Therefore, the caste as well as the social
and educational backwardness of a citizen who intends to enter
into the fold of the Backward Class or Scheduled Castes or
Scheduled Tribes is also a relevant factor and it must be
established as of fact.
42. In the light of the above consideration, the necessary
conclusion is that an adoption under the Act is personal the
purpose of S. 12 is that he or she becomes completely a member
of the adoptive family "for all that purposes" -- be it for a
religious or secular purpose, but "for the purpose of the
Constitution", under Articles 14, 15 (4) and 16 (4), the adopted
child must satisfy not only that he or she belongs to the
particular homogeneous group or class or tribe but also become
a member of the homogeneous group or class or tribe, also had
suffered or subjected to all the disadvantages of handicaps
which the members of the homogeneous group, class or tribe,
are subjected to or have undergone or is undergoing. In that
context, recognition of such a person by the caste or community
elders to which the adoptee has already been assimilated or
seeks an entry is a relevant factor which has to be established as
a fact. The purpose of adoption under S. 12 is personal to the
adoptee and is distinct and apart from the constitutional scheme
under Articles 14, 15 (4) and 16 (4). The registration under S.
16 furnishes only a rebuttable presumptive evidence that the
adoption was made in compliance with the provisions of the Act.
Therefore, the presumption advances thus far and no further and
is of little avail to the benefits under Articles 15 (4) and 16 (4)
of the Constitution."
55. The learned Single Judge has also pointed out that the judgment of
"The State of Bihar & Ors. Vs. Kumari Abha" reported in 2002 (2) JLJR
627, as decided by a Division Bench of this Court does not help the
appellant but rather upholds age of early adoption.
56. Hence, similarly on the basis of the aforesaid cited judgments,
"Valsamma Paul" (supra), "A.S. Sailaja" (supra) and "Kumari Abha"
(supra), I am in agreement with the learned Single Judge and see no reason
to interfere with the impugned order dated 07.06.2017 passed by the CSC
and also the enquiry report dated 29.07.2015.
57. I would like to add here that the early formative years of a child are
very crucial to shaping the views and attitudes one holds, which in turn is
also affected by his environs or milieu around him, particularly social. In the
case of early adoption or very early adoption, a child's life experience will
be a continuum. In the appeal on hand, adoption at the late age of 14 years
will split life experience and memory into a pre and post adoptive stages.
This apart, what is the subjective view/attitude of the adoptee towards the
community one is being adopted into may also be important and crucial in a
case of late adoption not overriding advantageous start in life with less
disadvantageous childhood, less handicaps, less ignominy and less
likelihood of assimilation. Hence, for the aforesaid reasons, I too see no
reason to interfere with the order dated 11.10.2017 of the learned Single
Judge passed in WP(C) No. 3288 of 2017.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated:14th June 2022
RKM/Madhav
A.F.R
