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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3288 of 2017
Madhusudan, son of late Rameshwar Paswan, resident of P.O.
P.SArgora, DistrictRanchi … … Petitioner
Versus
1. The State of Jharkhand
2. Principal Secretary, Welfare Department, Government of
Jharkhand, P.O. P.S.Dhurwa, Project Bhawan, Ranchi,
Jharkhand
3. Caste Scrutiny Committee through its Chairman, P.O. P.S.
Dhurwa, Project Bhawan, Ranchi, Jharkhand … Respondents
CORAM: HON’BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Prashant Pallav, Advocate
For the respondentState : Mr. Jai Prakash, AAG
Mr. Rishi Pallav, JC to AAG
Mr. Yogesh Modi, JC to AAG
Mrs. Chaitali C. Sinha, JC to AAG
CAV No. 14.09.2017 Pronounced on: 11/10.2017
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
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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
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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.” reported in
(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
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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.” reported in
1991 (2) PLJR 774 and submits that the delegatee cannot
delegate its power to any other body or authority. It is further
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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 1516 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 57 years, whereas R.S Lal stated the age of the
petitioner to be 1011 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. M/s National Insurance Co. Anr.” reported
in (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
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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. Smt.
Tribeni Devi Ors.” reported in (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” (supra)
[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.” reported in (2012) 1 SCC 333 and submits that
the judgment rendered in the case of “Kumari Madhuri Patil”
(supra) 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
“The State of Bihar Ors. Vs. Kumari Abha” reported in 2002
(2) JLJR 627.
4. Per Contra, Mr. Jai Prakash, the learned Additional
Advocate General appearing on behalf of the respondentState of
Jharkhand submits that late Rameshwar Paswan was not issueless,
rather he had a daughter who died at the age of 4 years. It is
further submitted that in the school register, the name of the
father was written as Jadunandan Prasad, but the same has been
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changed by cutting in red ink which appears to have been done
recently. It is further submitted that in the alleged affidavits of the
natural father and adoptive father, the date of birth of the
petitioner is different and there is vast difference in the serial
numbers of both the affidavits which creates doubt over the
genuinity of the affidavits. It is further submitted that the original
register was never produced by the Office of the Executive
Magistrate, Nawada inspite of reminders and as such, the alleged
affidavits cannot be accepted. It is further submitted that the
proper procedure of adoption was not followed and no concrete
documentary evidence in this regard has been produced by the
petitioner before the CSC. It is also submitted that the petitioner
failed to produce any evidence to show that the petitioner ever
stayed with late Rameshwar Paswan in his house and his last rites
were done by him, rather in the evidence, it has come that the
same was done by one Suraj Paswan. It is further submitted that
the petitioner was afforded ample opportunity of hearing
including the opportunity to produce supporting documents, but
he failed to establish his claim as held by the CSC. The learned
Additional Advocate General while referring to subpara (10) of
paragraph no. 13 of the judgment of the Hon’ble Supreme Court
in the case of “Kumari Madhuri Patil” (supra) submits that the
Hon’ble Apex Court has also clarified so as to deal with the
situation where the proceeding of the CSC is not concluded within
a period of 2 months. Thus, the argument of the learned Senior
Counsel for the petitioner that if the enquiry is not concluded and
the report is not prepared within a period of 2 months, the CSC
would become functus officio, is not correct. So far as the
contention raised on behalf of the petitioner that the CSC of the
State of Jharkhand could not have delegated the enquiry to the
CSC of Bihar, the learned Additional Advocate General submits
that paragraph no. 3 of the impugned order itself makes it clear
that since the concerned villageSekhodeora is sitauted in the
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district Nawada (Bihar), which is out of the territorial jurisdiction
of the State of Jharkhand, a request was made to the Government
of Bihar to send the report on 5 points, which has been detailed in
the impugned order itself. So far as conducting an enquiry by the
CSC of Government of Jharkhand is concerned, the learned
Advocate General puts reliance on the judgment of the Hon’ble
Supreme Court rendered in the case of “State of Maharashtra
Ors. Vs. Ravi Prakash Babulalsingh Parmar Anr.” reported in
(2007) 1 SCC 80 (this judgment has also been relied upon by the
learned Senior Counsel for the petitioner) and submits that the
provisions of Indian Evidence Act is not applicable for the purpose
of enquiry to be conducted by the CSC. The CSC may devolve its
own procedure for making an enquiry to collect proper evidence
so as not to cause any injustice to the concerned person, however,
it cannot be restricted to any particular procedure. The learned
Additional Advocate General referring to paragraph no. 5 of the
Instructions of the Government of India dated 02.05.1975
(Annexure2/11 to the writ petition) submits that in cases where
a person claims to be a Scheduled Caste on the ground that he has
been adopted by a Scheduled Caste person, the validity of the said
adoption has to be clearly established before any caste certificate
is issued. The onus of proof is on the person who claims to be
adopted by a Scheduled Caste person. It is further submitted that
paragraph no. 9 of the impugned order itself indicates that on
04.03.2016, the petitioner appeared before the Chairman of the
CSC and his statement was also recorded. The learned Additional
Advocate General also refers to page no. 74 of the writ petition
which is a declaration by one Suresh Kumar Singh the then
Mukhia, Village PanchayatSekhodeora, DistrictNawada, Bihar
and submits that the petitioner has claimed his date of birth to be
21.02.1964 and as per the statement of said Mukhia, the adoption
was made on 04.04.1979. Thus, taking both the dates together,
the petitioner was more than 15 years of age on the date of
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adoption. It is thus, submitted by the learned AAG that the
impugned order passed by the CSC is completely justified and the
same does not warrant interference by this court.
5. Having heard the learned counsel for the parties and
on going through the documents placed on record, it appears that
the petitioner has claimed that he was born on 21.02.1964 in a
backward class family, but subsequently at 14 years of age on
10.03.1978, he was taken in adoption by one Rameshwar Paswan
(a scheduled caste person) as per Hindu customary law in front of
the villagers. After the adoption, his natural father as well as
adoptive father executed affidavits before the Executive
Magistrate, Nawada on 04.04.1979 and thereafter, his father’s
name was also changed in the school register. Subsequently, the
petitioner was issued caste certificates of scheduled caste on
25.04.1979, 13.08.1987 and 05.02.1992. The petitioner came out
successful in 37th Combined Civil Services Examination conducted
by the Bihar Public Service Commission as a Scheduled Caste
category candidate and was thus selected for Bihar Police Service
and was posted as Deputy Superintendent of Police but
subsequently he was issued showcause stating therein that he
secured appointment on the basis of false caste certificate. After
the petitioner’s service was allocated to the State of Jharkhand, a
decision was taken vide Memo No. 4051 dated 10.08.2013 to
start a proceeding for terminating the petitioner from service, but
later on the Government of Jharkhand took a cabinet decision on
24.05.2014 to get the caste status of the petitioner verified by the
CSC in terms with the judgment of the Hon’ble Apex Court
rendered in the case of “Kumari Madhuri Patil” (Supra). Finally,
the CSC found that no legal procedure was followed during
alleged adoption of the petitioner and also no evidence has been
produced to show that the petitioner ever lived with his adoptive
father. In the case of “Kumari Madhuri Patil” (Supra), the
Hon’ble Supreme Court has streamlined the procedure for
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issuance of Social Status Certificate, its scrutiny and approval. It
has been held inter alia that there would be a Caste Scrutiny
Committee in every State, which on an application for verification
of the caste certificate, shall get it investigated by a Vigilance Cell
consisting of Senior Deputy Superintendent of Police in overall
charge and other police officers. For the investigation, the
Inspector would go to the local place of residence and the original
place from where the candidate hails and usually resides or in
case of migration, to the place from where he originally hailed
from. The Vigilance Officer should personally verify and collect all
the facts of the social status claimed by the candidate or the
parents or guardian, as the case may be. He should also examine
the school records, birth registration, if any. The said officer
should also examine the parents, guardian or the candidate in
relation to their caste etc. or such other persons who have
knowledge of the social status of the candidate and then submit a
report to the Directorate together with all particulars as envisaged
in the proforma, in particular, of the Scheduled Tribes relating to
their peculiar anthropological and ethnological traits, deity,
rituals, customs, mode of marriage, death ceremonies, method of
burial of dead bodies etc. by the castes or tribes or tribal
communities concerned.
6. In the present case, when the matter reached the CSC
of the State of Jharkhand, it took a decision that since the matter
is related to a district situated in the State of Bihar which is
beyond its territorial jurisdiction, it would be appropriate to call
for a report from the Government of Bihar on five points, all
related with respect to the adoption of the petitioner. Finally, the
CSC vide impugned order dated 07.06.2017, rejected the Caste
Certificate of the petitioner on the ground that the petitioner
failed to produce any legal document to show that he was legally
adopted by his adoptive father. It appears from the impugned
order that none of the witnesses have categorically denied the
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adoption of the petitioner. However, there are variance in the
statements of the witnesses examined by the Investigating
Committee of the State of Bihar with regard to the age of the
petitioner at the time of adoption. Four witnesses appear to have
been examined by the Investigating Committee relating to the age
of the petitioner at the time of adoption. The CSC at paragraph
no. 13 of the impugned order has stated that as per the C.D.
submitted by the Investigating Committee, witness Rajendra
Prasad stated the age of the petitioner as 2225 years, Suraj
Paswan stated 1820 years, Jugal Kishore Lal stated that the
petitioner was adopted in young age and Ravi Shankar Prasad
stated that the petitioner was 15 years at the time of adoption.
However, in paragraph no. 6 of the impugned order also, the
statements of Jugal Kishore Lal and Ravi Shankar Prasad have
been recorded where it has been mentioned that Jugal Kishore Lal
stated that the age of the petitioner at the time of adoption was
1516 years and Ravi Shankar Prasad has stated that the age of
the petitioner was 10/15 years at the time of adoption.
7. However, in the Matric certificate produced by the
petitioner which was issued in the year 1980, the name of the
father of the petitioner has been mentioned as Rameshwar
Paswan and at that time, the petitioner was aged about 16 years.
The first caste certificate was issued to the petitioner on
25.04.1979 which is also a government document. Thus, it is hard
to believe that the petitioner was adopted after the age of
15 years. The witnesses namely, Rajendra Prasad and Suresh
Paswan appear to have lack of knowledge about the exact age of
the petitioner at the time of adoption. So far the other witnesses
i.e., Jugal Kishore and Ravi Shankar Prasad are concerned, their
statements were incorporated at two places with two different
versions which also create doubt about their knowledge as to the
date of adoption of the petitioner. On the other hand, the
petitioner in support of his claim filed the affidavits of Mukhiya
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Birendra Kumar Singh and 31 villagers who have stated that the
petitioner was taken in adoption at the age of 14 years as per
Hindu Customary Law and after adoption, the petitioner came in
the house of Rameshwar Paswan and performed all his obligation
as the son of Rameshwar Paswan.
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. The CSC rejected the claim of the
petitioner mainly on the ground that the petitioner has not
produced any legal document/registered adoption deed to prove
his adoption and the alleged affidavits of his natural father as well
as the adoptive father have also not been proved. It has further
been observed in the impugned order that the “Shradh” of Late
Rameshwar Paswan was also not performed by the petitioner,
however, he had given money for performing last rites of late
Rameshwar Paswan.
9. So far the observation of the CSC with regard to the
necessity of registration and legal requirement of adoption is
concerned, the judgment cited on behalf of the petitioner in the
case of “Param Pal Singh Vs. National Insurance Co.” (supra) is
relevant. Paragraph nos. 11 to 14 of the said judgment are quoted
hereinbelow.
11. In the first instance we wish to deal with the
issue relating to validity of the adoption of the
appellant since if only his adoption is held to be
valid there is scope for examining his right to claim
compensation over the death of the deceased as his
adopted son.
12. In Hindu Law in the celebrated decision of this
Court reported in Lakshman Singh Kothari (supra),
the legal requirement for a valid adoption has been
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succinctly stated in paragraph 10 which reads as
under:
“10. The law may be briefly stated thus:
Under the Hindu law, whether among the
regenerate caste or among Sudras, there
cannot be a valid adoption unless the
adoptive boy is transferred from one family
to another and that can be done only by the
ceremony of giving and taking. The object of
the corporeal giving and receiving in
adoption is obviously to secure due publicity.
To achieve this object it is essential to have a
formal ceremony. No particular form is
prescribed for the ceremony, but the law
requires that the natural parent shall hand
over the adoptive boy and the adoptive
parent shall receive him. The nature of the
ceremony may vary depending upon the
circumstances of each case. But a ceremony
there shall be, and giving and taking shall be
part of it. The exigencies of the situation
arising out of diverse circumstances
necessitated the introduction of the doctrine
of delegation; and, therefore, the parents,
after exercising their volition to give and
take the boy in adoption, may both or either
of them delegate the physical act of handing
over the boy or receiving him, as the case
may be, to a third party.”
13. The said legal position has been consistently
followed by this Court which can be mentioned by
referring to a recent decision of this Court reported
in M. Gurudas and others V. Rasaranjan and others
2006 (8) SCC 367. Paragraphs 26 and 27 are
relevant for our purpose which read as under:
“26. To prove valid adoption, it would be
necessary to bring on record that there had
been an actual giving and taking ceremony.
Performance of “datta homam” was
imperative, subject to just exceptions. Above
all, as noticed hereinbefore, the question
would arise as to whether adoption of a
daughter was permissible in law.
27. In Mulla’s Principles of Hindu Law, 17th
Edn., p. 710, it is stated:
“488. Ceremonies relating to adoption.–
(1) The ceremonies relating to an adoption
are–
(a) the physical act of giving and
receiving, with intent to transfer the boy
14from one family into another;
(b) the datta homam, that is, oblations
of clarified butter to fire; and
(c) other minor ceremonies, such as
putresti jag (sacrifice for male issue).
(2) The physical act of giving and receiving
is essential to the validity of an adoption. As
to datta homam it is not settled whether its
performance is essential to the validity of
an adoption in every case. As to the other
ceremonies, their performance is not
necessary to the validity of an adoption.
(3) No religious ceremonies, not even
datta homam, are necessary in the case of
shudras. Nor are religious ceremonies
necessary amongst Jains or in the Punjab.””
14. In this context, it will be worthwhile to note
the requirement of registration of an adoption
deed. Section 17 of the Registration Act specifically
refers to the documents of which registration is
compulsory. The deed of adoption is not one of the
documents mentioned in subsection (1) of Section
17 which mandatorily requires registration. Sub
section (3) of Section 17 only refers to the
mandatory requirement of registration of an
authorization that may be given for adopting a son
executed after 01.01.1872 if such authorization
was not conferred by a will. Dealing with the said
provision relating to authorisation, it has been held
in the decision reported in Vishvanath Ramji Karale
V. Rahibai Ramji Karale and others AIR 1931
Bombay 105 by a deed of adoption as distinguished
from authority to adopt does not require
registration.”
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
15of ‘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. The extent
of power of judicial review of the High Court in a similar matter
has been decided by the Hon’ble Supreme Court in the case of
“Kumari Madhuri Patil” (Supra), the relevant para of which is
quoted herein below:
“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 record 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.”
11. From the aforesaid judgment, it transpires that the
power of judicial review of the High Court in relation to the
finding of fact arrived at by the Committee is limited. However, if
the court sees that the Committee has not applied its mind to the
relevant facts available on record which have led the Committee
to ultimately record its finding, then the court may exercise the
power of judicial review. It has further been held that each case is
required be considered on its own fact. In the case in hand,
although the CSC had sufficient factual materials on record, it
failed in its duty to correctly apply the law and as such, I think it
appropriate to discuss the ratio laid down by the Hon’ble Supreme
Court, with regard to the present issue on the basis of undisputed
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facts emerging in the present writ petition.
12. The cases where a SC/ST woman marrying a man
belonging to other caste and claiming reservation, the cases where
offspring of an intercaste married coupleeither of the spouses
belonging to SC/ST claiming reservation and cases where children
of forward caste parents taken in adoption into the family of
SC/ST/BC claiming reservation have repeatedly come up for
consideration before the courts. In all the three categories of
cases, the claim was for preferential treatment either under Article
15(4) or 16(4) of the Constitution of India. In almost all the cases
decided by the Hon’ble Supreme Court falling in these categories,
the test laid down is whether the person claiming reservation
under Article 15(4) and 16(4) of the Constitution of India had
advantageous start in life before being adopted by the
Scheduled Caste family. With regard to the woman of a forward
caste marrying a man of SC/ST, the Hon’ble Supreme Court in the
case of “Rameshbhai Dabhai Naika Vs. State of Gujarat Ors.”
reported in (2012) 3 SCC 400 held that when a woman born in a
scheduled caste or a scheduled tribe marries a person belonging
to a forward caste, her caste by birth does not change by virtue of
the marriage. So far as the cases of the offspring of intercaste
married couple where one of the spouses belonging to SC/ST
claiming reservation is concerned, the Hon’ble Supreme Court in
paragraph no. 54 of “Rameshbhai Dabhai Naika” (supra) held
that the caste of the offspring is essentially a question of fact to be
decided on the basis of the facts adduced in each case. The
determination of caste of a person born out of an
intercaste marriage or a marriage between a tribal and a
nontribal cannot be determined in complete disregard to the
attending facts of the case. In an intercaste marriage or a
marriage between a tribal and a nontribal, 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 intercaste
17
marriage or a marriage between a tribal and a nontribal, 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 child of a forward
caste father, he/she 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. The third situation, i.e., a
child of nontribal was transplanted to a tribal family by virtue of
adoption, then whether he will gain the status of tribal for the
benefit of reservation, is more relevant for adjudication of the
present case. Thus, it would be pertinent to deal with the said
issue in detail before deciding the case. The judgment of the
Hon’ble Supreme Court in “Valsamma Paul Vs. Cochin
University” reported in (1996) 3 SCC 545 is a key judgment
which has been cited and relied upon in various subsequent
judgments of the different High Courts while deciding the said
issue and as such, before coming to the merit of the case, I would
like to take note of the guiding factors laid down by the Hon’ble
Supreme Court in the case of “Valsamma Paul” (Supra). The
Hon’ble Supreme Court in paragraph no. 34 of the said judgment,
held thus:
“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
18some 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.”
13. The Hon’ble Apex Court in a clear and explicit term
held that a person born in privileged class and subsequently
transplanted in unprivileged class by adoption or marriage or
conversion does not become eligible to the benefit of reservation.
The Hon’ble Supreme Court further added that 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 enumerated under
Article 15 (4) and 16 (4) of the Constitution.
14. Similar issue came before a Bench of Andhra Pradesh
High Court in the case of “A.S. Sailaja Vs. Principal, Kurnool
Medical College, Kurnool Ors.” reported in 1986 AIR (AP)
209, the relevant paragraphs of which are quoted as under:
“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
19
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
20
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.”
15. This issue in no more resintegra. The reason or the
historical background under which the Indian Constitution
provided for reservation to scheduled caste and scheduled tribe
was rooted in the social history of such caste or community. It was
in this background, the benefit of reservation was provided under
the Indian Constitution and has been continued thereafter. Such
an ethos or reasoning has been dealt with by the Hon’ble Supreme
Court in detail in the case of “Valsamma Paul” (supra). I am also
in respectful agreement with the view taken by the Andhra
Pradesh High Court in the case of “A.S Shailaja” (supra),
wherein it has been held that if a child of Brahmin family was
taken in adoption in a Shepard family in a very early age i.e., upto
the age of 5 years and a presumptive evidence is furnished that
the child is assimilated in the homogeneous group and integrated
himself/herself as a member of such group imbibing all the traits
21
of the group or undergoing sufferings or subjected to all the
disadvantages or handicaps/ignominy which the members of the
said homogeneous group are subjected to, then only a child may
be considered to be a member of the said homogeneous group
though he/she had the birth in Brahmin caste. However, a child
who has social, cultural and educational advantageous start in life
upto 15 years or so and then taken in adoption by a Shepard
family, he/she cannot be said to be the part of the homogeneous
group into which he/she was transplanted.
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 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
22
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.
17. The petitioner is also not justified in contending that
since his natural father belonged to Other Backward Class, it
would have made no material difference on the issue of
reservation after being adopted by a Scheduled Caste person, as
the OBC (Baniya caste) itself has been notified by the Government
to avail the benefit of reservation in public employment. In my
considered view, both caste/class have different and distinct
historical background. The scheduled castes are those who have
suffered the social evil of untouchability over the period of time
by the other castes of the society, whereas the “Other Backward
Classes” are those who have been treated as relatively backward
in social, economic and educational front. Moreover, both the
caste/class have been recognized differently by the Constitution of
India and thereby provided different protection/privileges. Thus,
a “Scheduled Caste”, by no means, can be equated with “Other
Backward Classes”.
18. The learned Senior Counsel for the petitioner has put
much reliance upon a judgment of Division Bench of this Court in
the case of “State of Bihar Ors. Vs. Kumari Abha” (supra),
wherein it has been held as under:
14. In the present case, the writ petitioner Kumari
Abha originally born in a Backward class ‘Kurmi’
family, she by birth was not a forward class. In this
background, the State cannot equate her with a
member of a forward caste Hindu.
15. It is not in dispute that Kumari Abha was
adopted by (Late) Ramdin Ram, a scheduled caste
at the age of 5 years. She was born in a family of
backward caste ‘Kurmi’ and after her
transplantation in a Scheduled Caste family by
adoption she was brought up in a family of most
backward class. It is also not in dispute that since
her 5 years age brought up in the family of a
Scheduled Caste was subjected to the disabilities,
23disadvantages, indignities or sufferings of a
Backward class. In the background, there appears
to be no reason to deny her the facility to which a
members of SC is entitled.
16. Further, it is not the case of the appellantState
that she misrepresented to obtain a Scheduled
Caste Certificate, nor there is anything on record to
suggest that the certificate is forged. On the other
hand, it is evident that the writ petitionerKumari
Abha was granted caste certificate by the
competent authority after an enquiry.
19. The fact situation of the aforesaid case was entirely
different where the child was taken in adoption at the age of
5 years and as it has already been discussed hereinabove that
when the child is adopted at a very early age and he/she suffers
the disadvantages or handicaps/ignominy, then he/she would
certainly be treated as integral part of scheduled caste community.
However, in the case in hand, admittedly, the petitioner was
adopted at the age of 14 years and did not suffer disadvantageous
start in life, thus the ratio of “Kumari Abha” (Supra) will not
apply to the case of the petitioner. 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 nonscheduled 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.
20. The argument of the learned Senior Counsel for the
petitioner that the enquiry was not completed within the time
stipulated by the Hon’ble Supreme Court in “Kumari Madhuri
24
Patil” (Supra) and as such, the same has no legal sanctity cannot
be accepted as the time limit prescribed by the Hon’ble Supreme
Court is directive in nature depending upon various eventualities.
From the fact of the present case, it is evident that the matter was
pending with the CSC of State of Jharkhand whereas the subject
matter of inquiry was in the territorial jurisdiction of the State of
Bihar which appears to be one of the reasons for delay in
conclusion of the proceeding. The learned Additional Advocate
General has invited the attention of this court to subpara (10) of
Para 13 of the judgment of “Kumari Madhuri Patil” (Supra),
which deals with the situation where the proceeding is not
completed within the time stipulated by the Hon’ble Supreme
Court. The further argument of the learned Senior Counsel
appearing on behalf of the petitioner that the CSC being a
quasijudicial authority and a delegatee itself, could not have
redelegated the inquiry to other authority also cannot be
accepted as in the case of “Ravi Prakash” (Supra), the Hon’ble
Supreme Court has held that the Caste Scrutiny Committee may
devolve its own procedure for making an inquiry to collect the
evidences. Since the CSC has recorded the situation in the
impugned order itself that the place of inquiry was situated within
the territorial jurisdiction of the State of Bihar and as such, it was
thought appropriate to call for a report from the Government of
Bihar, the recording of evidence cannot be said to be vitiated on
that score. The further argument of the learned Senior Counsel for
the petitioner to the effect that the petitioner has not been given
opportunity to crossexamine the witnesses and also the inquiry
was done behind his back is also not tenable as in paragraph no.
13 of “Kumari Madhuri Patil” (Supra), it is nowhere stipulated
that the inquiry should be made in the presence of the candidate.
Moreover, it could not be established by the petitioner as to what
prejudice was caused to him in recording the statements of the
witnesses during the enquiry. Moreover, the record reveals that
25
the petitioner was given ample opportunity to adduce evidence
before the CSC and the petitioner also produced all the evidences
in his support, thus the said contention raised on behalf of the
petitioner cannot be accepted.
21. In view of the aforesaid discussion, I see no reason to
interfere with the impugned order dated 07.06.2017 passed by
the Caste Scrutiny Committee and also the enquiry report dated
29.07.2015.
22. The writ petition being devoid of merit is accordingly
dismissed.
(Rajesh Shankar, J.)
High Court of Jharkhand, Ranchi
Dated: 11/10/2017
Manish/A.F.R.