Jharkhand High Court
State Of Bihar And Ors. vs Kumari Abha on 23 July, 2002
Equivalent citations: 2002(50)BLJR1979, AIR 2003 JHARKHAND 40, 2003 AIR - JHAR. H. C. R. 12, 2002 (3) BLJR 1979, 2002 BLJR 3 1979, (2002) 3 JCR 132 (JHA), (2002) 2 JLJR 627
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, Lakshman Uraon
JUDGMENT S.J. Mukhopadhaya, J.
1. The respondent-writ petitioner, Kumari Abha having successfully competed in Pre-medical and Dental Test, was admitted in the 1st Year M.B.B.S. Course in M.G.M. Medical College, Jamshedpur for the sessions, 1993-92.
Subsequently a notice vide letter No. M,C./ 73/94 dated 3rd February, 1994, was issued on her alleging submission of forged S.C. certificate, she being not a S.C. On receipt of reply the "Deputy Secretary, Health Medical Education and Family Welfare Department, Government of Bihar, Patna vide impugned letter No. 250 (26) dated 18th October, 1996 ordered to cancel her admission.
2. The learned single Judge by impugned judgment dated 15th August, 1997, allowed the writ petition, CWJC No. 3928/ 1996 (R), as was preferred by her.set aside the order dated 18th October, 1996, allowing Kumari Abha to pursue her studies and to appear in all examinations.
3. The appellant-State of Bihar took plea that the deed of her adoption by a Scheduled Caste was not proper being not registered, nor the writ petitioner-Kumari. Abha can be treated as a Scheduled Caste member, having not born in a Scheduled Caste family.
4. Admittedly, writ petitioner-Kumari Abha born in a kurmi family, a member of other Backward Class (O.B.C.). The case of writ petitioner-Kumari Abha was that she was adopted at the age of 5 years by one Late Ramdin Ram, a member of Scheduled Caste (S.C.). After her adoption, since her 5 years of age, she was brought up by her adopted parents. Late Ram Ramdin Ram got her admitted in Schools and Colleges wherein in the records her father's name has been shown as Ramdin Ram.
5. Before learned single Judge the appellant-respondent State of Bihar took only plea that the deed of adoption being not registered the writ petitioner cannot claim to have been adopted by late Ramdin Ram.
6. The learned single Judge taking into consideration the fact that Kumari Abha was adopted by (Late) Ramdin Ram at the age of 5 years following all the rites and ceremonies, a deed of adoption was executed by the original parent, in the School records and certificates granted by the Bihar School Examination Board and the Intermediate Council (Late) Ramdin Ram has been shown as her father, held that there being strong presumption of adoption and in absence of any contrary provision such as registration under Section 16 of the Hindu Adoption and Maintenance Act, 1956, the adoption cannot be held to be illegal.
Learned single Judge noticed the Supreme Court decision in Devi Prasad v. Triveni Devi, AIR 1970 SC 1286, wherein the Apex Court made similar observation.
7. Learned single Judge also noticed the Supreme Court decision in Banwari Lal v. Trilok Chand, AIR 1980 SC 419, wherein the Apex Court held that if there is evidence to the effect that since childhood she or he is treated as son/daughter of the adopted father, it is a strong presumption of adoption.
8. Mr. A.K. Mehta, learned counsel for the State of Jharkhand assisted in the Court, the Institute namely, M.G.M. Medical College, Jamshedpur having fallen within the jurisdiction of State of Jharkhand while he accepted that there is no necessity to register a deed of adoption, submitted that even on transplantation by adoption, Kumari Abha is not entitled to claim reservation under Article 15(4) of the Constitution of India. He place reliance on Supreme Court decisions in Valsamma Paul v. Cochin University, reported in (1996) 3 SCC 545 and State of Tripura v. Namita Majumdar, reported in (1998) 9 SCC 217.
9. Similar issue fell for consideration before Courts from time to time. In the case of Madhuri Patil v. Addl. Commr., Tribal Development, (1994) 6 SCC 241, the appellant was daughter of one Lakshman Pati, who was Hindu Koly (forward class). She obtained caste certificate as Mahadeo Koli, a Scheduled Tribe and was admitted into Medical College. When it was found that she belonged to forward class, her admission was cancelled and the writ petition was dismissed. The Supreme Court held that for the purpose of entitlement to admission under Article 15(4), the identification by the President as a Scheduled Tribe is conclusive. The Apex Court did not accord to a member of forward class to study by obtain a false certificate of a Scheduled Tribe.
10. In the case of Valsamma Paul v. Cochin University, (1996) 3 SCC 545, the Supreme Court framed the issue whether a candidate, by marriage, adoption or obtaining a false certificate would be entitled to an identification as a member of a class for appointment to a post reserved under Article 16(4) or for an admission in an Educational Instituted under Article 15(4) or not, it held that a lady belonging to a non-reserved class on marrying a SC, ST or OBC or a person belonging to non-reserved class transplanted by adoption or any other voluntary act to a family belonging to a reserved class would not ipso facto entitled to claim reservation under Article 15(4) or 16(4) of the Constitution as the case may be, in view of the advantageous start of life availed by her/ him.
11. Similar view expressed by the Supreme Court in the case of State of Tripura v. Namita Majumdar, (1998) 9 SCC 217. That was a case of a forward class female married with a SC member.
12. In another case of A.S. Sailaja v. Principal, Kurnool Medical College, AIR 1986 AP 209, the Andhra Pradesh High Court held that the mind of children brought up in culturally, educationally and economically advanced atmosphere is accounted highly as they are bound to start the rest of life with advantage, the children born amongst backward classes would not start the rest of life with the same quality of life. It would, therefore, be necessary to identify the competing interest with diversion of society and it is the duty of the Court to strike a balance between comprising claims of different interest. The backward classes fulfilling the traits of socially and educationally backward amongst that group, would alone be eligible for admission as backward class citizen under Article 15(4).
13. The aforesaid issue also fell for consideration before the Supreme Court in the case of Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, 1995 Supp. (2) SCC 549 and in the case of R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309. The Supreme Court held that when a member is transplanted into 'Dalits,' Tribes or OBCs he/she must have necessarily undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle and avail the facility of reservation.
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, disadvantages, 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 appellant-State 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 petitioner-Kumari Aba was granted caste certificate by the competent authority after an enquiry.
17. It will be also evident that when the writ petitioner-Kumari Abha was pursuing study in the 4th years, the impugned order of cancellation was issued on 18th October, 1996.
18. In the circumstances. I find no reason to differ with the finding of learned single Judge.
19. There being no merit, the appeal is dismissed. However, there shall be no order as to cost.
Laxman Uraon, J.
20. I agree.