Subhashini and Another vs The State of Bihar and Others

Shashank Kumar Singh, J.—The present writ application has been filed for quashing of Annexures-1 and 2, the order of Controller of Examination, Bihar Combined Entrance Competitive Examination Board dated 26.11.2002, by which order of allotment and order of admission of the writ Petitioners in M.B.B.S. course in different colleges in Bihar on the seats reserved for SC/ST have been cancelled in view of report of the District Magistrate, Aurangabad and the District Magistrate, Kaimur at Bhabua.

A further prayer has been made for quashing of Annexure-3 which is the cancellation order of the caste certificate issued from the office of the Sub-divisional Officer, Aurangabad.

The short fact of the present case is that as advertisement was published for admission in M.B.B.S./B.D.S/B.A.M.S./ B.H.M.S. courses for the sessions 2002-03 both the Petitioners applied as scheduled tribe candidates. Admit cards were issued to them and written test was conducted on 11.7.2002. Both the Petitioners succeeded in the aforesaid test. Counselling was held on 24.8.2002 and the Petitioners were declared successful. In the meantime, in view of the decision of the State of Bihar to reduce the reservation for the scheduled tribe candidates from 7% to 1 % fresh counselling was held on 18.10.2002. Both the Petitioners who are own sisters were d(sic) rected to furnish a fresh caste certificate However, as some doubt arose, the Controller of Examination of Bihar Combined Entrance Competitive Examination wrote to the Petitioners to show cause till 6.11.2002 explaining the discrepancies in their cast certificate until then their seats were d(sic) rected to be blocked. The aforesaid letter has been appended as Annexure-4. The parents of the Petitioners in view of aforesaid show cause filed reply stating therein that the father of the Petitioner is residing in Gumla district and as such he had applied and obtained caste certificate of both the Petitioners from the competent authorities on the basis of the caste certificate issued to him. It has been contended by learned Counsel that by mistake the issuing authority failed to mention the permanent address of the Petitioners as Bhabua district However, not being satisfied by the aforesaid reply, the Controller of Examination requested the District Magistrate Aurangabad to verify the genuineness of the caste certificate of the Petitioners, (sic) has been contended that the District Magistrate, Aurangabad asked the District Welfare Officer, Aurangabad to verify and report. The District Welfare Officer subsequently directed the Sub-divisional Officer for the same. It further transpires that after obtaining the report of the Circle Officer Aurangabad the Sub-divisional Officer Aurangabad wrote to the mother of the Petitioners to submit the caste certificate issued by the Sub-divisional Officer Bhabua. However, instead of submitting the said certificate the mother of the Petitioners brought certain evidences and certificates in support of their caste who were claiming that they belong to Gond cas(sic) which is a scheduled tribe and their permanent residents were village Akhlash(sic) Bhabua and requested him to subrrit (sic) cation report to the Controller of Ex-(sic)ation. However, Sub-divisional Officer, Aurangabad wrote to the mother of the (sic)oners cancelling the caste certificate to the Petitioners treating them as (sic)d caste. The Sub-divisional Officer fur-(sic) wrote to the District Magistrate, Aurangabad abad that the caste certificate is-(sic)d in favour of the Petitioners have been (sic)celled and the Controller of Examina-(sic) informed accordingly. The same (sic) reulted in issuance of Annexure-1.

The contention on behalf of the (sic)oners is that a caste certificate cannot (sic) cancelled on the ground that it has been (sic)ued by different authorities as in the (sic)sent case as the mother and father of (sic) Petitioners are posted at two different as such, they could have very well (sic)ined the caste certificate from the place their residence. The requirement is of (sic)ining a caste certificate from the place (sic) reside and not the place originally (sic) where they belong. It has further been (sic)ued that if the moiher and the father of (sic) Petitioners have been accepted as be(sic)ging to the Gond caste i.e. a sub-caste (sic) the scheduled tribe then their offspring (sic)matically become Gond that is a sched-(sic) tribe. In support of their contention a (sic)g list of documents have been relied (sic)n by the counsel of the Petitioners that the entry into Khatian i.e. of the year (sic)3 as contained in Annexure-5 and other (sic)ments of the year 1924 and onwards (sic)how that the aforesaid documents went (sic)how that they were of Gond caste with (sic) rprofession being that of Cutter. Other (sic)uments also as contained in Annexures-7, 8 and 9 have been relied on for the (sic)e purpose. Annexure-10 is the enquiry (sic)rt of Information Officer (Parsar(sic)dhikari), Bhabua dated 12.6.1998 sub-(sic)ed to the Sub-divisional Officer. Bhabua (sic)ing on census report and other relevant (sic)ments and the customs adopted by the Petitioner''s family, it has been submitted in the report that the family was a sub-caste of Gond tribe and such castes are scheduled tribes. Further testimonials issued by the Sub-divisional Officer has also been annexed in support of the contention that the services of the Petitioners'' forefathers have been appreciated towards their contribution to the upliftment of the community. Other research papers as contained in Annexure-12 have beer; relied upon to show that Gond community resided in the area from where Petitioners belong. Annexure-13 has been brought on record to show that different members of the Petitioners'' family have been granted caste certificate of being Gond as scheduled tribe, since 1957 onwards till 2002. These certificates have been relied upon to show that this was the settled and accepted fact that the Petitioners and their family members were Gond and scheduled tribe and a settled thing was tried to be unsettled on flimsy ground after holding a superficial enquiry. According to learned Counsel, a settled thing cannot be unsettled in this way. No detailed enquiry has been held. The contention of iearned counsel for the Petitioners is that nothing has been brought on record to satisfy the Court that the matter had been enquired at length and cogent reason were there for the district authorities to cancel the caste certificate of the Petitioners. Caste certificates being issued from Aurangabad where the mother of the Petitioners was working as the Principal in the local college could not have been a ground for cancellation of the caste certificate. According to learned Counsel, overwhelming evidence on record which goes to show that they belong to the scheduled tribe community and as such, Annexure-3 be quashed and consequential order issued by the Controller Examination being Annexures-1 ana 2 be aiso quashed.

learned Counsel for the State, on the other hand, had on the earlier occasion contended before the Court that before issuing the certificate to the Petitioners as belonging to the backward class (Bhatbhunja) a full-dress enquiry was conducted at the level of the District Magistrate, Bhabua. Though nothing has been brought on record that such an enquiry had been held and only by bringing one page document i.e. Annexure-R/7-G, in the counter affidavit of Respondent No. 7, which goes to show that the same has been issued in view of orders given for the said purpose. The matter was adjourned for them to produce the relevant records to show that a full-dress enquiry after participation of the Petitioners or their parents had been conducted to deprive them of the certificate which has been issued in their favour and the enquiry had resulted in a conclusive proof that they belong to different caste.

On the last day when the matter was taken up, learned Counsel for the State very fairly submitted that the report was based after verifying the fact that from the area where the Petitioners claim to belong or their ancestors used to live, in that area no person of Gond caste resides. Actually the caste which resided in those areas were Gour or Gonr and as the Petitioners'' ancestors resided in that area they were also either Gour or Gonr which belong to backward class and not scheduled tribe. It has further been argued that caste Gonr is commonly called as Bhatbhunja. The document which has been appended by the Petitioners have also been tried to be read in the light of the aforesaid submission and as such, it has been contended that as no such community resided in that area. By mistake, the ancestors of the Petitioners may have received certificate of belonging to scheduled tribe class but that enquiry itself did not confer any right in the Petitioners and as such, their certificates have rightly been cancelled.

learned Counsel for the Petitioners in support of their contention has relied upon a judgment of tis Court in the case of Sumit Anand through his father Sumit Anand through his father Dr. Sunil Kumar Vs. The State of Bihar and Others, where tis Court held that if the pa(sic)ents of a particular person belong to a(sic) particular community that is scheduled tribe(sic) the irresistible conclusion would be that the said claimant belongs to the said comunity. Petitioners'' ancestors/predecessors both from paternal and maternal side proved: to be belonging to the Gond tribe. The notings of deed-writers and personal enquiry made by Registering Officer coupled with positive recommendation made in Petitioner''s favour by Circle Officer and the District Magistrate after applying their independent minds, Petitioner entitled to ge(sic) certificate of Gond tribe. It was further he(sic) that if certificates issued in favour of the Petitioner''s parent and other relations stand then there will be no occasion for the Sta(sic) Government to make an enquiry into the certificates issued in their favour under the garb of enquiry proposed to be made into the entitlement of Petitioner.

Reliance has been made in the aforesaid case to press the point that the Petitioner''s case is also squarely coven by the aforesaid case. The certificates sued in favour of the parents and other relations of the Petitioners have not been cancelled. The documents on record be(sic) very old as back as 1913 and the report (sic) the Circle Officer and other reports (sic) appended with the writ application go (sic) show that the family members of the Petitioners belong to Gond tribe. Now by m(sic) ing a superficial enquiry the said certifica(sic) cannot be cancelled, even enquiry was (sic) required to be made just for the purpos(sic) unsettling a settled fact which is coming (sic) since generation as there is no aven(sic) that either from the mother side or (sic) ther side due to inter-caste marriage or otherwise they no more belong to the Gond (sic)aste

Further reliance has been made (sic)on an unreported judgment of a Division bench of tis Court in the case of Anjani Kumar v. The State of Bihar and Ors. in C.W.J.C. No. 1407 of 1990 where a Division Bench of tis Court on 24.10.1990 in (sic) similar matter directed the Respondent Dstrict Magistrate to grant caste certificate to the Petitioner showing him as a member of scheduled tribe belonging to Gond community within one month, wherein tis Court after appreciating the fact that since the Petitioner''s father and grand father have been found by the concerned authorities specially the predecessor of the District Magistrate who was the competent author-(sic)y to grant certificate to be member of Gond community, the irresistible conclusion would be that the Petitioner is also member of Gond community. When father and grand father are Gond community, the Court held that we really fail to understand that how the son can become non-Gond.

Tis Court relying on two orders of tis Court in C.W.J.C. No. 7826 of 1989 (sic)sposed of on 30.4.1990 and C.W.J.C. No. 321 of 1988 disposed of on 23.5.1989 held that members of Gond community (sic)siding within whole of the State of Bihar (sic) ve been declared to be scheduled tribe (sic)y a Presidential order. In view of the bresaid facts, the Court held that tis Court have no option but to hold that the Respondent-District Magistrate was not jus-(sic)ed in not granting caste certificate to the Petitioner holding him to be belonging to the Gond tribe i.e. a scheduled tribe.

In the facts of the case, in view of (sic)cussions as made above, and in view of (sic)se laws as relied upon by the Petitioners (sic)nd specially in view of the fact that flimsy (sic)nd superficial enquiry has been made by the District Magistrate, Bhabua, tis Court has no option but to quash Annexure-3 and the consequential orders as contained in Annexures-1 and 2. In view of quashing of Annexures-1, 2 and 3 the Controller of Examination, Bihar Combined Entrance Competitive Examination Board may further proceed to pass appropriate orders and take follow up action as if these annexures never existed. However, passing of this order would not preclude the District Magistrate, Bhabua to get a full-dress enquiry instituted and after getting the matter enquired into at length with the participation of the Petitioners, he may after giving notice to them, pass a detailed appropriate orders holding as to which community/caste/tribes the Petitioners belong but as a vested right which is coming from generation to generation has to be taken away, due caution is to be exercised.

This writ application is allowed to the extent indicated above.