Jharkhand High Court

Madhusudan vs The State Of Jharkhand on 22 August, 2023

                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                       W.P. (S) No. 5357 of 2018
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                 Madhusudan                                            .........          Petitioner.
                                                     Versus
             1. The State of Jharkhand.

2. Chief Secretary, Govt. of Jharkhand, Ranchi.

3. Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Govt. of Jharkhand, Ranchi.

4. Home Secretary, Department of Home Affairs, Govt. of Jharkhand, Ranchi.

                                                        ..........    Respondents.
                                -----------
          CORAM: HON'BLE DR. JUSTICE S. N. PATHAK

For the Petitioner : Mr. Ajit Kumar, Sr. Advocate Ms. Tanya Singh, Advocate For the Respondents: Mr. Sachin Kumar, AAG-II Mr. Deepak Kr. Dubey, AC to AAG-II

C.A.V. on 23.06.2023 Pronounced on 22.08.2023

Dr. S.N. Pathak, J Heard the parties.

PRAYERS MADE IN WRIT PETITION:

2. The petitioner has approached this Court with a prayer for quashing the order dated 22.09.2017 (Annexure-13) passed by the respondent-authorities, in pursuant to departmental proceeding initiated against the petitioner vide memo No. 4051 dated 10.08.2013, whereby the petitioner's service as Deputy Superintendent of Police has been terminated.

Further prayer has been made for direction upon the respondents to reinstate the petitioner into service with all consequential benefits.

3. However, during course of arguments, learned senior counsel appearing for the petitioner confines his prayer to the extent that respondents be directed to consider the case of petitioner for any other punishment other than the punishment of dismissal taking into consideration the following facts:

(i) Long services rendered by the petitioner;

(ii) Observations given by the Hon'ble Patna High Court in LPA No. 708/2002 filed by the petitioner;

(iii) Respondent's own statement made in para 38 of the counter-affidavit that the case of petitioner "may not be a case of obtaining employment by playing

fraud".

(iv) The caste certificate of the petitioner was never cancelled/ recalled; &

(v) The findings arrived by this Court in W.P.(S). No. 3288 of 2017 and LPA No. 571 of 2017, whereby atleast adoption of petitioner at the minor age of 14 years has been accepted.

FACTS OF THE CASE:

4. Shorn of unnecessary details, the petitioner was born in the year 1964 in the family belonging to Baniya community which comes under OBC category. Subsequently, the father of the petitioner had agreed to give the petitioner by way of adoption to one Rameshwar Paswan, the entire process of which was completed on 10.03.1978, i.e. at the age of 14 years. Thereafter, on the basis of affidavits sworn by the natural father and adoptive father of the petitioner both dated 04.04.1979, a caste certificate was issued in favour of the petitioner on 25.04.1979. Thereafter, the petitioner completed his studies living with his adoptive parents. It is the case of the petitioner that he qualified in the 37th Combined Civil Services Examination conducted by Bihar Public Service Commission and on the basis of fresh caste certificate issued in the year 1992, he was inducted in the Bihar Police Services to the post of Deputy Superintendent of Police as a Scheduled Caste Candidate. Thereafter, he successfully completed his training and was appointed vide notification No. 6857 dated 15.04.1993. The petitioner started discharging his duties and after lapse of nine years, all of a sudden a show-cause notice was issued to the petitioner alleging therein that he secured appointment under the respondent-Department by submitting wrong caste certificate and pursuant thereto, process of seeking concurrence from the Public Service Commission was initiated by the erstwhile State of Bihar vide letter dated 14.09.2001. The petitioner had challenged the show-cause notice along with letter dated 14.09.2001, in CWJC No. 14254 of 2001 before the Hon'ble Patna High Court, in which the petitioner succeeded.

Against the order dated 10.01.2002 passed by learned Single Judge, the erstwhile State of Bihar preferred an appeal being LPA No. 708 of 2002 and the Hon'ble Division Bench framed three issues, which are as

follows:

a) Whether the petitioner was adopted by the person belonging to Scheduled Caste category and if so whether he will be entitled for reservation?

b) Whether the petitioner should be allowed to continue on the post of Deputy Superintendent of Police only on the ground that he has remained on that post since 1993?

c) Whether by virtue of the marks obtained by the petitioner he is entitled to any post in the Bihar Administrative Service under any category?

Thereafter, vide its judgment dated 29.01.2023, the Hon'ble Division Bench decided first two issues against the petitioner and in respect to the third issue it is well noted fact that petitioner had obtained 583.5 marks whereas the cut-off marks for general category and other backward category in Administrative Service were 580 and 578 respectively, observation was made that, it was upon the State Government to take a decision as to whether by virtue of the marks obtained by the petitioner, he is entitled to any post in the Bihar Administrative Service under any category. Pursuant thereto, the petitioner submitted a representation dated 25.03.2003 before the erstwhile State of Bihar asking them to allow the petitioner to continue in the service of Bihar Police or alternatively accommodate him based on his merit as he had scored 583.5 marks.

However, no decision was ever taken by the erstwhile State of Bihar and the petitioner continued in the Bihar Police Service and ultimately, after bifurcation of the erstwhile State of Bihar, the petitioner was given the Jharkhand cadre and joined to the post of Dy.S.P. in the year 2003.

In the State of Jharkhand, instead of taking any decision in the line what was already held and observed by the Hon'ble Patna High Court in LPA No. 708 of 2002, the State of Jharkhand again took a decision vide order dated 09.07.2013 for initiating a department proceeding against the petitioner. Immediately, the petitioner filed W.P.(S). No. 440 of 2014 challenging the initiation of departmental proceeding in terms of memo No.

4051 dated. 10.08.2013. Another writ petition being W.P.(S). No. 3310 of 2013 was also filed by the petitioner for seeking the declaration that his appointment is valid and that he belongs to Scheduled Caste Category.

In the meantime, the State Govt. again changed its view and by way of Cabinet decision dated 24.05.2014, took a decision to get the matter of the petitioner verified by the Caste Scrutiny Committee. Pursuant thereto, the Caste Scrutiny Committee, in its report dated 07.06.2017 held that the adoption of the petitioner was bad, not based on registered instrument and based on its enquiry, the said Committee rejected the Caste Status of the petitioner as Scheduled Caste. The said order of Caste Scrutiny Committee was challenged by the petitioner in W.P.(C). No. 3288 of 2017. Hence, both the writ petitions filed earlier by the petitioner, were withdrawn on the ground that petitioner had challenged decision of Caste Scrutiny Committee in W.P.(C). No. 3288 of 2017, however, the said writ petition was dismissed by this Court vide its order dated 11.10.2017.

The petitioner, being aggrieved by the order dated 11.10.2017, filed LPA No. 571 of 2017 and the Hon'ble Division Bench vide its judgment dated 14.06.2022, upheld the order dated 11.10.2017, passed in W.P.(C). No. 3288 of 2017. The petitioner also preferred SLP(C) No. 16487 of 2022 challenging the order passed in LPA No. 571 of 2017 and W.P.(C). No. 3288 of 2017. The Hon'ble Apex Court vide its order dated 31.10.2022, dismissed the SLP preferred by the petitioner. In the departmental proceeding petitioner was dismissed.

Hence, the petitioner has approached this Court for redressal of their grievances.

ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONER

5. Mr. Ajit Kumar, learned senior counsel assisted by Ms. Tanya Singh, learned counsel appearing for the petitioner assiduously urges that the impugned order of termination of petitioner from service is bad in law and on fact, as the said order is in the teeth of the provision of Section 12 of the Hindu Adoption and Maintenance Act, which mandates that an adopted child shall be deemed to be child of his adoptive father or mother for all intents and purposes. Learned senior counsel further argues that the impugned order passed on the foundational fact that the adoption of the

petitioner is not valid and as such, he cannot be conferred with the benefit of adoptive Caste, has lost its force after finding of the Hon'ble Court in W.P.(C). No. 3288 of 2017, wherein it has been held that the adoption of the petitioner does not suffer from any legal infirmity. It has been further argued that the decision of the respondent-authorities to terminate the services of the petitioner is violative of Article 14 of the Constitution as the respondent-authority has taken decision which is against the provision of Statute. Learned senior counsel further argues that the Caste Certificate issued in favour of the petitioner is in consonance with the Govt. of India Circular and it does not suffer from any infirmity. Learned senior counsel further argues that Cast Scrutiny Committee can scrutinize an adoption case, only if the person concerned is above 15 years of age. Here in the instant case, the adoption took place at the age of 14 years and thus, the caste certificate issued in favour of the petitioner is valid and the finding of the Caste Scrutiny Committee was beyond jurisdiction. Learned senior counsel further argues that since there is no misrepresentation on the part of the petitioner and also since he has obtained more marks than the last selected candidate under Unreserved and OBC category and has rendered a long service tenure and superannuated on against the age of retirement, a direction be given to the respondents to grant him consequential benefits, treating him under Unreserved category. Learned senior counsel drawing the attention of the Court towards observation made by this Court in W.P.(C). No. 3288 of 2017, argued that on 01.10.2017, it was specifically observed by the Court that adoption is valid but in view of judgment held in the matter of Valsamma Paul Vs. Cochin University, reported in (1996) 3 SCC 545, petitioner is not entitled for reservation and the writ petition was dismissed and the order of learned Single Judge was affirmed in LPA No. 571 of 2017. Learned senior counsel confines his argument to the extent that the respondents should consider for inflicting any other punishment to the petitioner than the dismissal/ removal/ compulsory retirement and should further grant the consequential benefits, taking into consideration the long services rendered by the petitioner.

6. To buttress his arguments, learned senior counsel places heavy reliance on the following judgments:

(i) Gajanan Marotrao Nimje & Ors. Vs. Reserve Bank of India & Ors. [(2019) 12 SCC 639], para 7 to 11;

(ii) Sandeep Subash Parate Vs. State of Maharashtra & Ors. [(2006) 7 SCC 501], para 14 & 15;

(iii) Dattu Vs. State of Maharashtra [(2012) 1 SCC 549] para 5 to 7; &

(iv) B.C. Chaturvedi Vs. Union of India [(1995) 6 SCC 749] para 22 & 23.

ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS

7. Per contra counter affidavits have been filed by the respondents.

Mr. Sachin Kumar, learned AAG-II representing the respondent-State vehemently opposes the contention of learned senior counsel appearing for the petitioner and submits that earlier an enquiry was conducted by the State of Bihar and it was found that adoption of the petitioner is not valid. Moreover, during the proceeding, before Hon'ble Patna High Court in CWJC No. 14254 of 2001, petitioner 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. Mr. Sachin Kumar further argues that the Division Bench of Hon'ble Patna High Court has also held that the decision taken by the State of Bihar to terminate the services of the petitioner as Dy. S.P. did not suffer from any legal infirmity. It has been further argued that the petitioner has obtained appointment to the post of Dy.S.P. claiming himself to be a candidate of the Scheduled Caste Category, however, since the Caste Scrutiny Committee has held that petitioner's adoption cannot be termed to be a valid one, therefore, he cannot be allowed to claim the benefit of Scheduled Caste Category. Since the very appointment of the petitioner was under Scheduled Caste Category, rightly, the order of termination was issued, which warrants no interference.

8. To strengthen his arguments, learned counsel for the respondent-

State places heavy reliance on the following judgments:

(I) Indian Oil Corporation Ltd. Vs. Rajendra D.

Harmalkar [2022 SCC Online SC 486]; (II) The Chief Executive Officer, Bhilai Steel Plant, Bhilai Vs. Mahesh Kumar Gonnade & Ors. [2022 SCC Online SC 866];

(III) Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir & Ors. [(2008) 13 SCC 170].

FINDINGS OF THE COURT

9. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that no interference is warranted in the instant writ petition. Admittedly, petitioner was appointed to the post of Dy. Superintendent of Police under the reserved category i.e. in the Scheduled Caste category. The validity of caste certificate was tested by the Caste Scrutiny Committee (for short "CSC") and it was answered in negative which became the subject matter of challenge before this Court in W.P.(S). No. 3288 of 2017. The Writ Court was in agreement with the verdict of CSC and the writ petition filed by the petitioner stood dismissed. The order of Writ Court was challenged by the petitioner in LPA No. 571 of 2017 on the ground that,

(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.

The Division Bench considering every aspects of the matter, dismissed the LPA No. 571 of 2017, holding therein that:

"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."

The order of Hon'ble Division Bench was also tested before the Hon'ble Apex Court, however, the SLP No. 16487 of 2022, preferred by the petitioner stood dismissed.

10. From the orders passed by learned Single Judge, Hon'ble Division Bench and also by the Hon'ble Apex Court, it can comfortably be inferred that the petitioner was not entitled for any benefits of reservation and his adoption was not valid and he could not claim any benefits arising out of said Caste Certificate. Even the Division Bench of Hon'ble Patna High Court held that in such a situation allowing him to continue on the post of Deputy Superintendent of Police will amount to giving premium to his own wrongful acts. The said proposition of Court finds strength from the judgment passed by Hon'ble Apex Court in G. Sundarasan Vs. Union of India, reported in (1995) 4 SCC 664, in which it was held that person not belonging to the scheduled caste cannot be allowed to take the benefits of his own wrongful act. The termination was held to be valid.

11. In the instant case, the petitioner has confined his prayer to allowing the petitioner for consequential benefits after reinstatement inflicting any other punishment other than the dismissal. When the State Government of both the States i.e. erstwhile State of Bihar and that of the present State of Jharkhand has clearly held that petitioner has wrongly been appointed taking the benefits of reserved category of SC and the adoption was not valid, this Court is in full agreement with the verdict of the CSC which has been affirmed upto the Hon'ble Apex Court. The reliance of the learned senior counsel for the petitioner on various judgments mentioned above are of no help to him as the same have already been considered and contention of petitioner was not found worthy

to be accepted. At this stage also, those judgments are of no help to the petitioner.

12. It has been clearly observed in plethora of judgments that where a candidate has been appointed to a reserved post on the basis of claim that he or she was a member of the group for which reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, rendered the appointment void ab initio. The said issue was taken before the Hon'ble Apex Court in case of Oriental Insurance Co. Ltd. v. Pradip, reported in (2020) 11 SCC 144, and the Hon'ble Court held as under:

6. In its judgment in Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670, this Court has held:

"48. ... Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class.

Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. ... A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter, a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the

revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservation is intended."

7. We may note at this stage that in para 59 of the judgment in FCI case [Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670 : (2017) 2 SCC (L&S) 708] , this Court has observed thus :

"59. The Full Bench judgment of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] has essentially construed the judgments in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and in Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] as having impliedly overruled the earlier Full Bench judgments in Ganesh Rambhau Khalale [Ganesh Rambhau Khalale v. State of Maharashtra, 2009 SCC OnLine Bom 20 : (2009) 2 Mah LJ 788] and Ramesh Suresh Kamble [Ramesh Suresh Kamble v. State of Maharashtra, 2006 SCC OnLine Bom 1078 : (2007) 1 Mah LJ 423] . In view of the conclusion which we have arrived at in regard to the earlier decisions rendered by the two-Judge Benches in Kavita Solunke [Kavita Solunke v. State of Maharashtra, (2012) 8 SCC 430 : (2012) 2 SCC (L&S) 609] and Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] , we are unable to subscribe to the view expressed by the Full Bench in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] . The judgment of the Full Bench of the Bombay High Court in Arun [Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 : (2015) 1 Mah LJ 457] holds that : (SCC OnLine Bom para 75) '(i) mere invalidation of the caste claim by the Scrutiny Committee would not entail the consequences of withdrawal of benefits or discharge from the employment or cancellation of appointments that have

become final prior to the decision inMilind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] on 28-11-2000;

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(iv) the benefit of protection in service upon invalidation of the caste claim is available not only to the persons belonging to "Koshti" and "Halba Koshti", but is also available to the persons belonging to the Special Backward Class category on the same terms....' (emphasis in original) The High Court in case of Meenakshi Dagadu Adhtrao v. State of Maharashtra, 2014 SCC OnLine Bom 4757 has even gone to the extent of holding that the decision in State of Maharashtra v. Milind, (2001) 1 SCC 4 was in the nature of prospective overruling of the law which was laid down by the Bombay High Court. The above view of the Bombay High Court is clearly unsustainable. Neither the judgment in State of Maharashtra v. Milind, (2001) 1 SCC 4, nor any of the judgments of this Court which have construed it have held that State of Maharashtra v. Milind, (2001) 1 SCC 4 was an exercise in prospective overruling. The High Court was in error in holding so. The decision of the Full Bench in Arun v. State of Maharashtra, 2014 SCC OnLine Bom 4595 is unsustainable. The Full Bench had evidently failed to notice that cases where the protection was granted by this Court following the invalidation of a caste claim was in exercise of the power conferred by Article 142 of the Constitution, depending upon the facts and circumstances of each case. The jurisdiction under Article 142 is clearly not available to the High Court in the exercise of its jurisdiction under Article 226. The High Court erred in arrogating that jurisdiction to itself."

16. .......................................... Both S.G. Barapatre v. Ananta Gajanan Gaiki, 2018 SCC OnLine SC 2175 and Gajanan Marotrao Nimje v. RBI, (2019) 12 SCC 639 are decisions of a two-Judge Bench and do not lay down any principle of law contrary to the binding three-Judge Bench decision in Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670. Neither the DoPT Circular dated 8-4-2019 nor the Circular dated 20-6-2019 of the Department of Revenue can depart from the principles laid down in Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670. .....................................

17. In the decision in Food Corpn. of India v. Jagdish Balaram Bahira, (2017) 8 SCC 670, this Court held :

"65. Administrative circulars and government resolutions are subservient to legislative mandate and cannot be

contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that the Government is bound by its own circulars is well settled but it cannot apply in a situation such as the present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment."

13. The case in hand has got a chequered history, as it appears from the aforesaid facts that the issue involved in the instant writ petition is no more res integra. The adoption, reservation and dismissal of petitioner has been tested upto the Hon'ble Apex Court and petitioner did not succeed at any Forum. Interference at this stage would be going against the legal proposition set at rest.

14. This Court is in full agreement with the aforesaid legal propositions and is of the view that petitioner is not entitled for any benefits.

15. As a sequitur to the aforesaid observations, rules, guidelines, judicial pronouncements and legal propositions, the impugned orders dated 10.08.2013 and 22.09.2017 warrant no interference.