Jharkhand High Court
Nikita Kumari vs The State Of Jharkhand Through The ... on 25 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 269 of 2024
Nikita Kumari, aged about 21 years, daughter of Shri Yogendra Kumar,
resident of Village- Rasulpur Dahala, P.O. & P.S. Sahibganj, District-
Sahibganj ... Petitioner
-Versus-
1. The State of Jharkhand through the Circle Officer, Sahibganj Sadar,
P.O. & P.S. Sahibganj, District- Sahibganj
2. Medini Rai Medical College through its Principal, having office at
Daltonganj, P.O. & P.S. Daltonganj, District- Palamu ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Manoj Tandon, Advocate
Mr. Rakesh Kumar Roy, Advocate
Ms. Neha Bhardwaj, Advocate
Mr. Adamya Kerketta, Advocate
For the State : Mr. Jai Prakash, A.A.G.-IA
Ms. Omiya Anusha, A.C. to A.A.G.-IA
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07/25.09.2024 Heard Mr. Manoj Tandon, learned counsel appearing for the petitioner
and Mr. Jai Prakash, learned A.A.G.-IA appearing for the respondent-State.
2. The prayer in the writ petition is made for quashing the letter dated
28.10.2023, contained in Annexure-6 issued by the Circle Officer, Sahibganj
Sadar, whereby, the caste certificate issued in the name of the petitioner
has been cancelled. The further prayer is made for direction to respondent
no.2 to allow the petitioner to appear in the first professional examination of
MBBS first year for the Session 2022-23. The prayer is also made to declare
that since the father of this petitioner as well as mother of this petitioner,
both have been issued caste certificates in the category of Scheduled Caste
in the years 1981 and 2002 respectively and both are working in
Government Services, as such, caste certificates issued to the petitioner
cannot be doubted. The further prayer is made for quashing the decision
dated 05.01.2024, contained in Annexure-11 taken by respondent no.2,
whereby, the petitioner has been debarred from all educational work.
3. Mr. Manoj Tandon, learned counsel appearing for the petitioner
submits that the father of this petitioner was issued caste certificate from
Sahibganj district itself prior to bifurcation of the State on 25.08.1981,
contained in Annexure-1. Similarly, the caste certificate of the mother of this
petitioner was issued on 24.09.2002, contained in Annexure-2 and,
thereafter, caste certificate was also issued in favour of the petitioner on
15.04.2017 belongs to Scheduled Caste category in view of her caste and
again the caste certificate was issued in favour of the petitioner on
27.12.2021 saying that the petitioner belongs to the Scheduled Caste
category in view of her caste. He further submits that on the basis of such
caste certificate, the petitioner faced National Eligibility-cum-Entrance Test
(UG) 2022 (in short NEET, 2022) and as per her marks, she was admitted in
Medini Rai Medical College, Palamu as MBBS student for the Session
2022-26 and she was admitted in the said College on 03.11.2022 by way of
Annexure-5. He then submits that respondent no.2 wrote a letter to the
Circle Officer, Sahibganj to verify the caste certificate of this petitioner and
pursuant to that, Annexure-6 was issued cancelling the caste certificate of
this petitioner. He submits that the father and mother of this petitioner, both
are of same caste and their caste certificates have been issued by the State
of Jharkhand only and in view of that, the caste of the petitioner cannot be
doubted. He also submits that on flimsy ground, the caste certificate of the
petitioner has been cancelled by the Circle Officer, Sahibganj without
providing any opportunity of hearing to the petitioner and show-cause. He
further submits that the Government of Jharkhand has come up with the
circular, contained in Annexure-G of the counter affidavit filed by the
respondent-State, wherein, it has been disclosed in Clause 11 that the caste
certificate will be issued on the basis of caste of father of the applicant. He
then submits that the issue in question was the subject matter before the
Hon'ble Supreme Court in the case of Pankaj Kumar v. State of
Jharkhand and others, reported in 2021 SCC OnLine SC 616, wherein,
it has been held that if the father and mother, both are of the same State
and caste certificates have been issued to them by the same State, based
on that the caste certificate of the sibling will be issued. He refers to
paragraphs 29, 30, 53, 54 and 55 of the said judgment, which read as
under:
"29. The President, after consultation with the Governor
and States concerned in exercise of its power conferred
under Articles 341(1) and 342(1) of the Constitution of
India notified the Constitution(Scheduled Castes) Order
1950 and the Constitution(Scheduled Tribes) Order, 1950
the part of which relevant for the purpose is as under:-
(Scheduled Caste)
PART II - BIHAR
1. Throughout the State:-
1. Bauri
2. Bantar
3. Bhogta
4. Chamar
5. Chaupal
6. Dhobi
7. Dom
8. Dusadh, including Dhari or
9. Ghasi
10. Halalkhor
11. Hari, including Mehtar
12. Kanjar
13. Kurariar
14. Lalbegi
15. Mochi
16. Musahar
17. Nat
18. Pan Dharhi
19. Pasi
20. Rajwar
21. Turi
2. In Patna and Tirhut divisions, and the districts of
Monghyr, Bhagalpur, Purnea and Palamau:-
Bhumij
3. In Patna, Shahabad, Gaya and Palamaudistricts:-
Bhuiya
4. In Shahabad district:-
Dabgar
(Scheduled Tribe)
PART II - BIHAR
1. Throughout the State:-
1. Asur
2. Baiga
3. Bathudi
4. Bedia
5. Binjhia
6. Birhor
7. Birjia
8. Chero
9. Chik Baraik
10. Gond
11. Gorait
12. Ho
13. Karmali
14. Kharia
15. Kharwar
16. Khond
17. Kisan
18. Kora
19. Korwa
20. Lohara
21. Mahli
22. Mal Paharia
23. Munda
24. Oraon
25. Parhaiya
26. Santal
27. SauriaPaharia
28. Savar
2. In the districts of Ranchi, Singbhum, Hazaribagh, Santal,
Parganas and Manbhum:-
Bhumij
30. It may be relevant to note that in the Constitution
(Scheduled Castes) Order, 1950, 21 castes have been
notified in the category of Scheduled Castes which applies
throughout the State. At the same time, there are castes
like "Bhumij, Bhuiya and Dabgar", which are identified on
region basis. In the Constitution (Scheduled Tribes) Order,
1950, 28 castes have been notified as Scheduled Tribes
which applies throughout the State and caste "Bhumij" in
certain regions is in the schedule of Scheduled Castes and
the very caste "Bhumij" of the same nomenclature in other
districts/regions in the unified State of Bihar is notified as
Scheduled Tribes. Certain modifications were made at a
later stage in the year 1956 and thereafter but that may
not be so relevant for the present purpose.
53. It will be highly unfair and pernicious to their interest
if the benefits of reservation with privileges and benefits
flowing thereof are not being protected in the State of
Jharkhand after he is absorbed by virtue to Section 73 of
the 2000 Act that clearly postulates not only to protect the
existing service conditions but the benefit of reservation
and privileges which he was enjoying on or before the
appointed day i.e. 15-11-2000 in the State of Bihar not to
be varied to his disadvantage after he became a member of
service in the State of Jharkhand.
54. The collective readings of the provisions of the 2000
Act makes it apparent that such of the persons whose place
of origin/domicile on or before the appointed day was of
the State of Bihar now falling within the districts/regions
which form a successor State i.e. the State of Jharkhand
under Section 3 of the 2000 Act became ordinary resident
of the State of Jharkhand, at the same time, so far as the
employees who were in public employment in the State of
Bihar on or before the appointed day i.e. 15-11-2000 under
the 2000 Act, apart from those who are domicile of either
of the district which became part of the State of Jharkhand,
such of the employees who have submitted their option or
employees who are junior in the cadre of their seniority as
per the policy of the Government of India of which a
reference has been made, either voluntarily or involuntarily
call upon to serve the State of Jharkhand, their existing
service conditions shall not be varied to their disadvantage
and stands protected by virtue of Section 73 of the 2000
Act.
55. In our considered view, such of the employees who
are members of the SC/ST/OBC whose caste/tribe has been
notified by an amendment to the Constitution (Scheduled
Castes)/(Scheduled Tribes) Order, 1950 under Vth and VIth
Schedule to Sections 23 and 24 of the 2000 Act or by the
separate notification for members of other backward class
category, benefit of reservation including privileges and
benefits flowing thereof, shall remain protected by virtue of
Section 73 of the 2000 Act for all practical purposes which
can be claimed (including by their wards) for participation
in public employment."
Relying on the above judgment, Mr. Manoj Tandon, learned counsel
appearing for the petitioner submits that the case of the petitioner is fully
covered.
4. On these grounds, Mr. Manoj Tandon, learned counsel appearing for
the petitioner submits that the impugned letter may kindly be quashed.
5. Per contra, Mr. Jai Prakash, learned A.A.G.-IA appearing for the
respondent-State opposed the prayers on the ground that the Principal of
the said College has sought for clarification about the caste certificate of
this petitioner and pursuant to that, the Circle Officer, Sahibganj has
directed the Revenue Sub Inspector and Circle Inspector to enquire into the
matter and in the enquiry report, it has come that the rent receipt produced
by the petitioner was manipulated and on that basis, the caste certificate
has been cancelled. He submits that there is no illegality in the said
cancellation. He further submits that the allegation with regard to
Annexure-6, there is no denial in the writ petition. He submits that even
Gram Sabha was not held with regard to the caste certificate of the
petitioner and correct documents were not produced in the office and in
view of that, the caste certificate has been cancelled. On these grounds, he
submits that this petition is not maintainable as disputed question of fact is
involved in this petition and, as such, this petition may kindly be dismissed.
6. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the materials on record and finds that
admittedly Annexure-1 is the the caste certificate of the father of the
petitioner, which clearly suggests that the father of the petitioner belongs to
Scheduled Caste and that certificate has been issued by the competent
officer of Sahibganj district. Annexure-2 is the document, which is the caste
certificate of mother of this petitioner, which is also issued in the district of
Sahibganj saying that she also belongs to the Scheduled Caste. Thus, it is
an admitted position that the father and mother of this petitioner, both
belong to the same caste. The question remains how the caste of the sibling
of the father and mother will be changed. It appears that in light of the
notification of the Government of Jharkhand, contained in Annexure-G of
the counter affidavit, on the basis of the caste of the father, the caste
certificate of the children is required to be issued. In course of argument,
further document of the Government of Jharkhand has been produced by
Mr. Manoj Tandon, learned counsel for the petitioner, which was issued after
the judgment of the Hon'ble Supreme Court in the case of Pankaj Kumar
(supra), whereby, it has been clarified that if the father and mother are of
the same State and caste certificates have been issued to them by the same
State, the sibling will also be entitled for caste certificate of that particular
caste. That notification is taken on the record.
7. The Court further finds that in absence of providing any opportunity
of hearing to the petitioner, the said action has been taken by way of
cancelling the caste certificate of this petitioner and that is directly related
to the education of this petitioner.
8. Further, in the counter affidavit not even a single chit of paper is
annexed to suggest that this petitioner has manipulated anything with
regard to manipulation, on which, much argument has been made by the
learned counsel appearing for the respondent-State.
9. The Court further finds that the case of the petitioner is fully covered
in light of the judgment passed by the Hon'ble Supreme Court in the case of
Pankaj Kumar (supra) as well as two circulars/notifications, which have
been discussed herein above.
10. It is well settled if major action is taken by any of the authority, the
concerned person is required to be given an opportunity of hearing by
issuing show-cause and that has also not taken place in the case in hand
and that has been asserted in paragraphs 18(d) and 20 of the petition,
which have not been denied in the counter affidavit filed by the respondent-
State, as such, the impugned letter dated 28.10.2023, contained in
Annexure-6 issued by the Circle Officer, Sahibganj Sadar is, hereby quashed.
11. In view of the above, there will be no impediment in allowing the
petitioner to continue in the Medini Rai Medical College, Palamu.
12. Accordingly, this petition is allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
