MADHUSUDAN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dated 07.06.2017 passed by the Caste Scrutiny Committee (hereinafter referred to as "CSC"), State of Jharkhand, whereby the claim of the petitioner for Scheduled Caste status has been rejected and the order was forwarded to the Principal Secretary, Home, Prison & Disaster Management, Government of Jharkhand. The petitioner has 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.

(2.) The case of the petitioner as stated in the writ petition is that the petitioner was born on 21.02.1964 in a Baniya family (OBC) in the house of one Jadunandan Prasad. His natural father was a poor newspaper hawker. One Rameshwar Paswan who was an agricultural labourer was a close friend and neighbour of the natural father of the petitioner and was issueless, whereas the petitioner has four brothers. It was agreed upon by the natural father of the petitioner and Rameshwar Paswan that his natural father would give the petitioner in adoption to Rameshwar Paswan and as such, the adoption process was completed on 10.03.1978 in the presence of the then Mukhia Shri Suresh Kumar Singh, villagers and family members. After the adoption, affidavits were executed by the natural father and adoptive father of the petitioner before the Executive Magistrate, Nawada vide oath nos. 913 and 514 respectively both dated 04.04.1979. Thereafter, in the School Admission Book of Government High School Kauwakol, Nawada, Bihar, the name of the father of the petitioner was also changed by inserting the name of the adoptive father in place of the natural father. The petitioner, after completing his schooling, graduated from the Indian School of Mines, Dhanbad and served as Mining Engineer at BCCL, Dhanbad from September, 1986 to September, 1992. Thereafter, he appeared in the 37th Combined Civil Services examination as Scheduled Caste candidate and was declared successful in the said examination conducted by Bihar Public Service Commission and joined the Bihar Police Service as Deputy Superintendent of Police. Subsequently, a showcause notice was issued to the petitioner alleging that he secured appointment in Bihar Police Service by submitting false caste certificate. The petitioner challenging the showcause notice filed C.W.J.C No. 14254 of 2001 before the Patna High Court, wherein it was held by the learned Single Judge that the petitioner was given in adoption for getting benefit in the employment, but on equitable consideration, the learned Single Judge allowed the petitioner to continue in service with a condition that he would not be entitled for benefits of reservation in future. Aggrieved thereby, the Staterespondents filed L.P.A No. 708 of 2002 before the Patna High Court and the learned Division Bench held that the petitioner was not entitled for the benefit of reservation in the matter of appointment as a Scheduled Caste candidate and the termination of the petitioner from service was justified. However, the question as to whether the petitioner by virtue of his marks scored in the Bihar Civil Services Examination is entitled to any post in the Bihar Civil Service under any category, was left open for decision of the State Government. Thereafter, the petitioner made representation before the State of Bihar and in the meantime in the year 2003, his service was allocated to the State of Jharkhand. After about 10 years, the State of Jharkhand took a decision to initiate a proceeding for terminating the service of the petitioner vide Memo No. 4051 dated 10.08.2013 which was challenged by the petitioner in W.P.(S) No. 440 of 2014. In the meantime, the Government of Jharkhand took a cabinet decision on 24.05.2014 to verify the caste status of the petitioner by the Caste Scrutiny Committee (CSC) in terms of the judgment of the Hon'ble Apex Court rendered in the case of "Kumari Madhuri Patil & Ors. Vs. Addl. Commissioner, Tribal Development and Ors., 1994 6 SCC 241". The petitioner filed a petition along with the relevant documents before the CSC, but the Committee vide impugned order dated 07.06.2017 held that no legal procedure was followed during alleged adoption of the petitioner and also no evidence was produced to show that the petitioner ever lived with his adoptive father.

(3.) Mr. Anil Kumar Sinha, the learned Senior Counsel for the petitioner submits that the order passed by the CSC suffers from illegality as the same is based on an enquiry report without applying its independent mind. The CSC has accepted the inquiry report without getting it proved by the maker and subjecting it to further crossexamination. The evidence on affidavit filed by the petitioner was not disputed by any authority before the CSC and, therefore, the CSC was not justified in not considering the said evidence. It is further submitted that there are glaring contradictions in the statements recorded in the video recording and the hard copy contained in the enquiry report and the said contradictions were though highlighted before the CSC, but the CSC failed to take into consideration those facts at the time of passing the impugned order. It is further submitted that neither the enquiry report nor the impugned order was provided to the petitioner and he came to know about the enquiry report through RTI and the impugned order through the media. It is further submitted that the CSC while adjudicating the issue of social status of the petitioner, has dealt with the issue of adoption of the petitioner in wrong manner. It is further submitted that a document which is more than 30 years old and issued by the competent authority shall be presumed to be legally executed. The petitioner had filed the entire documents in support of the fact that since the date of adoption i.e., 10.03.1978, he remained with the adoptive family, but the CSC while passing the impugned order totally ignored all those documents. It is further submitted that during enquiry, the Committee was reconstituted but the petitioner was not given any opportunity of hearing before the newly constituted Committee which is a clear violation of principles of natural justice. All the documents corroborating the facts of adoption were issued by the competent authorities immediately after the adoption which includes the matriculation certificate, School Leaving Certificate (SLC) and caste certificate, thus there is also no valid reason to dispute the school admission register. The CSC of the State of Jharkhand, being the quasijudicial body, should not have redelegated the role of making enquiry to the Bihar Caste Scrutiny Committee, rather it should have enquired the matter of its own and should have prepared the report. The learned Senior Counsel relies on the judgment rendered by the Patna High Court in the case of "Parwati Bhandar Vs. State of Bihar and Ors., 1991 2 PLJR 774" and submits that the delegatee cannot delegate its power to any other body or authority. It is further submitted that enquiry committee at no point of time issued any notice to the petitioner nor afforded opportunity of hearing. It is further submitted that the age of the petitioner at the time of adoption was wrongly considered as 15-16 years on the basis of evidence of witnesses Y.K Lal and R.S Lal. In fact, from the audio visual recording prepared by the enquiry team, it would appear that Y.K Lal stated that the age of the petitioner at the time of adoption was 5-7 years, whereas R.S Lal stated the age of the petitioner to be 10-11 years, but the same were not taken into consideration by the CSC. It is further submitted that the entire evidence given by the petitioner as well as by the enquiry team would show that the petitioner was given in adoption to late Rameshwar Paswan. It is further submitted that the registration of the deed of adoption is not mandatorily required under law. The learned Senior Counsel also relies on the judgment rendered by the Hon'ble Supreme Court in the case of "Mst. Param Pal Singh through father Vs. National Insurance Co. & Anr., 2013 3 SCC 409" and submits that there is no statutory stipulation that the registration of adoptiondeed is required to be mandatorily done. It is further submitted that after the death of the adoptive father, although the funeral was not performed by the petitioner as he was posted in the interiors of Dhanbad, however, other rituals were performed by the him. The affidavits sworn by the natural father and the adoptive father of the petitioner were not accepted by the CSC on the ground that the office of the Executive Magistrate failed to produce the original register though burden was upon the State as it is the custodian of the said register and not the petitioner. After the adoption, the petitioner lived and maintained his relationship with his adoptive father till his life time and after the death of the adoptive father, the petitioner also performed his "Shradh" karma. On perusal of the enquiry report, it would appear that at the time of adoption, the age of the petitioner was not above 15 years. Thus, the adoption is valid in terms of Section 10 of the Hindu Adoption and Maintenance Act, 1956. The finding of the CSC is also perverse in view of the fact that the statements which have been taken into consideration are of the incompetent and unreliable witnesses. The learned Senior Counsel relies on the judgment rendered in the case of "L. Debi Prasad (dead) by L.Rs. Vs. Tribeni Devi & Ors., 1970 1 SCC 677" and submits that in judging whether an adoption pleaded has been satisfactorily proved or not, one has to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof in support of such adoption. The learned Senior Counsel for the petitioner also puts emphasis on the judgment of the Hon'ble Supreme Court rendered in the case of "Kumari Madhuri Patil" [subpara (9) of paragraph no. 13] and submits that the CSC is required to complete the proceeding within a period not exceeding two months. However, in the present case, the CSC has taken 3 years in concluding the proceeding and thus, the same is abinitio bad in law. The learned Senior Counsel further relies on the judgment rendered in the case of "Dayaram Vs. Sudhir Batham & Ors., 2012 1 SCC 333" and submits that the judgment rendered in the case of "Kumari Madhuri Patil" has substantively been affirmed by the Hon'ble Supreme Court with certain modification. The learned Senior Counsel also put reliance on the judgment rendered by this court in the case of "State of Bihar & Ors. Vs. Kumari Abha, 2002 2 JLJR 627".