Patna High Court
Manoj Prasad vs The State Election Commission ... on 9 August, 2023
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14258 of 2022
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Manoj Prasad Son of Ramekbal Prasad, Resident of Village- Baghambarpur,
P.O. Patjirwa, P.S. Shree Nagar, District- West Champaran at Bettiah,
presently Mukhiya of Gram Panchayat Raj, Bagahi Baghambarpur, Block-
Bairiya, District- West Champaran at Bettiah.
... ... Petitioner/s
Versus
1. The State Election Commission (Panchayat) Sone Bhawan, Birchand Patel
Path, Patna through the State Election Commissioner.
2. The State Election Commissioner, The State Election Commission
(Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
3. The Secretary, The State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
4. Santosh Kumar Son of Baidyanath Sah, Resident of Village- Bagahi, Ward
No. 8, P.O. Patjirwa, P.S. Shree Nagar, District- West Champaran at Bettiah.
5. The State of Bihar through the Principal Secretary, General Administrative
Department, Government of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate with
Mr. Awnish Kumar, Advocate
For the Respondent No.4 : Mr.Amit Srivastava, Senior Advocate
Mr. Santosh Bharti, Advocate
Mr. Apurva Kumar, Advocate
For the State : Mr. Sanjay Kumar Ghosarvey, Advocate
For the Election Commission : Mr. Sanjeev Nikesh, Advocate with
Mr. Girish Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
C.A.V. JUDGMENT
Date : 09.08.2023
Heard Mr. S.B.K. Mangalam, learned counsel
for the petitioner, Mr. Amit Srivastava, learned Senior counsel
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023
2/47
for the respondent no. 4, Mr. Sanjay Kumar Ghosarvey, learned
AC to AAG -3 for the State and Mr. Sanjiv Nikesh for the State
Election Commission, Bihar.
2. The petitioner has moved this Court for:
(i) the issuance of an appropriate
writ in the nature of certiorari for quashing of the
order dated 15.07.2022 passed by the Respondent
no.2, the State Election Commissioner in Case
No.72 of 2022 (Santosh Kumar Vs. The State of
Bihar and others) communicated to him vide memo
no. 2900 dated 26.07.2022, whereby and
whereunder the Respondent no.2 has referred the
matter to the Caste Scrutiny Committee for
determination of the caste of the petitioner when a
complaint was filed before him by the Respondent
no.4 to disqualify the petitioner from holding the
post of 'Mukhiya' of Gram Panchayat Raj, Bagahi
Baghambarpur under Section 136 (2) of the Bihar
Panchayat Raj Act, 2006 (henceforth for short 'the
Gram Panchayat Act');
(ii) for issuance of any other
appropriate writ/writ, order/orders,
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023
3/47
direction/directions for which the writ petitioner
would be found entitled under the facts and
circumstances of the case.
3. Subsequently, vide I.A. No. 01 of 2023, the
petitioner also wanted quashing of the:
order dated 02.01.2023 passed by
the Caste Scrutiny Committee, General
Administration Department, Bihar, Patna
communicated vide memo no. 863 dated
12.01.2023by which it declared the petitioner to be a member of 'Koeri' (Kushwaha) Caste.
4. The matrix of facts giving rise to the present writ petition is/are as follows:
5. The petitioner was elected as 'Mukhiya' in the year 2021 election from Gram Panchayat Raj, Bagahi Baghambarpur in the district of West Champaran. It was challenged by one Santosh Kumar (respondent no. 4) on the ground that he has contested the election from the seat reserved for Extremely Backward Class on forged certificate declaring himself as 'Dangi' caste although he actually belongs to 'Koeri' (Kushwaha) caste which comes under the Other Backward Class (Annexure-2).
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 4/47
6. Accordingly, the petitioner was put on notice and a case vide Case No. 72 of 2022 was registered by the State Election Commission, Bihar, Patna (henceforth for short 'the Commission').
7. The petitioner appeared before the respondent no. 2, "the Commission" armed with the documents in support of his case. However, vide impugned order dated 15.07.2022 communicated vide memo No. 2900 dated 26.07.2022, 'the Commission' was pleased to refer the matter to the Caste Scrutiny Committee, General Administration Department, Bihar, Patna (henceforth for short 'the Committee') for declaration of his caste status.
8. It is worth mentioning here that 'the Committee' has been constituted under General Administration Department, Bihar, Patna (henceforth for short 'the GAD') in the light of a decision of the Hon'ble Supreme Court in Kumari Madhuri Patil vs. The Additional Commissioner, Tribal Development & Others reported in (1994) 6 SCC 241.
9. Aggrieved by the said reference to 'the Committee', the present writ petition was filed.
10. During the pendency of the writ petition, 'the Committee' referred the matter to the Criminal Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 5/47 Investigation Department, Bihar, Patna (henceforth for short 'the CID') which after an enquiry submitted its report vide letter no. 1812 dated 18.10.2022 addressed to the Additional Director, General Police (weaker section), 'the CID'.
11. According to 'the CID', the team conducted inquiry on the following points :
(i) the statement of the prominent persons of the society who stated that the petitioner belongs to 'Koeri' (Kushwaha) caste which comes under the other backward class and is not 'Dangi' (extremely backward class);
(ii) the statement of the local citizen who also endorsed the view of the prominent persons of the society;
(iii) as per the Land Revenue Records, the ancestor of the petitioner, one late Bhagelu Mahato has been recorded as 'Koeri' in the 'khatiyan'
(iv) the 'Sarpanch' in its letter head has given the details of the genealogy of the petitioner showing late Bhagelu Mahato as his ancestor;
(v) the verification of caste from Block/Circle office;
(vi) the Circle Office vide its letter no. 494 dated 09.09.2022 informed that the petitioner belongs to 'Koeri' Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 6/47 caste;
(vii) the petitioner studied at Government Bipin Higher Secondary School, Bettiah (West Champaran) and according to its Principal, in the admission register of the year 1993, his caste has not been registered.
12. The Enquiry Team further took into account the letter no. 673 dated 08.03.2011 (the Gazette notification) issued by 'the GAD' and according to Clause -9 of the said letter, at the time of grant of caste certificate, the revenue records of the father/ancestor is/are one of the important criteria and only in its absence, the ground verification is/are to be made.
13. Accordingly, the Enquiry Team came to the conclusion that the petitioner belongs to the 'Koeri' (Kushwaha) caste which comes under the Other Backward Class (Annexure-2).
14. 'The Committee' on receipt of the said enquiry report took up the matter and vide letter no. 1794 dated 08.11.2022 issued notice to the petitioner to file his written statement and further vide memo no. 23056 dated 21.12.2022 directed him to appear before 'the Committee' on 02.01.2023 for the purpose of hearing.
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 7/47
15. The petitioner appeared on 02.01.2023 along with his lawyer. The submissions put forward by him before 'the Committee' was/were that :
(i) the enquiry report has considered his caste as 'Koeri' (Kushwaha) on the ground of the 'khatian' showing his ancestor, late Bhagelu Mahato as 'Koeri', which is not fair;
(ii) 'Dangi' is a sub-caste of 'Koeri' and it was included under the Other Backward Class in 1995 and as such any 'khatian' prior to 1995 cannot have the said word;
(iii) the local representatives of Bagahi Baghambarpur have stated that he belongs to 'Dangi' caste.
16. The petitioner also submitted documents in support of his claim and it was his further case that the letter issued by the Circle Office do not have the signature of the Revenue Assistant.
17. Thereafter, 'the Committee' took up the matter and came to the conclusion amongst other that :
(i) as per 'the Department's' letter no. 673 dated 08.03.2011, the revenue record/khatian is an important document to consider the caste of the person where the name of the ancestor of the petitioner late Bhagalu Mahato has been recorded as 'Koeri';
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 8/47
(ii) so far as the claim of the inclusion of 'Dangi' caste in 1995 under the Backward Class is concerned, the same is fit to be rejected because 'Dangi' caste was present long before but was only included in the Other Backward Class and thereafter under Extremely Backward Class;
(iii) as such had he belonged to the 'Dangi caste, the word 'Dangi' must have been in the 'khatian' of his ancestor, Bhagelu Mahto.
18. Accordingly, 'the Committee' concurred with the findings of the Enquiry Team of 'the CID' and held that the petitioner belongs to 'Koeri' (Kushwaha) Caste which comes under Other Backward class.
19. The same was communicated to the petitioner vide memo no. 863 dated 12.01.2023.
20. The petitioner, thereafter, preferred I.A. No. 01 of 2023 challenging the said order dated 02.01.2023 of 'the Committee' communicated to him vide memo no. 863 dated 12.01.2023 (Annexure-P/14 to the writ petition).
21. The in I.A. No. 01 of 2023 was allowed on 25.01.2023 by the earlier bench.
22. The State filed counter affidavit and relevant paragraphs of the counter affidavit of respondent no. 5, Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 9/47 'the GAD' read as follows:-
"8. That the aforesaid Panchayat was reserved seat for the members of Extremely Backward Classes. But the petitioner elected the said Panchayat election by virtue of caste certificate of caste "Dangi" on the basis of caste certificate issued by the Circle Officer, Bairia and thus the petitioner is now holding the post of Mukhiya of the aforesaid mentioned Panchayat.
9. That in passage of time Sri Santosh Kumar filed a complaint before the State Election Commission to disqualify the petitioner as stating therein that the petitioner is caste by "Dangi" and hence the petitioner does not come in the list of Extremely Backward Classes.
10. That on receipt of the complaint of Sri Santosh Kumar, both of them were heard by the State Election Commission at Patna. But during the hearing of the complaint, the petitioner denied the complaint filed by Sri Santosh Kumar and in this context, the petitioner preferred a written statement in his defence. That the Respondent No. 2 i.e. the State Election Commission passed its order on the issue on 15.07.2022.
11. That whereby and whereunder their memo No.2900 dated 26.07.2022, the matter was referred to state level Scrutiny Committee to verify and determine the caste of the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 10/47 petitioner.
13. That in this context, it is further humbly and respectfully submitted that on the request of the State Election Commission, Bihar, Patna this answering department vide its letter No. 13864 dated 08.08.2022, requested the Inspector General of Police, Weaker Section, Crime Investigation Department, Bihar, Patna to verify the caste of the petitioner Sri Prasad.
23. Further, paragraph 14 read as follows:-
14. That in turn, of the request of made vide this department's letter so. 13864 dated 08.08.2022, the Crime Investigation Department vide its letter No. 1812 dated 18.10.2022 the report regarding the caste verification of the petitioner was made available to this answering department."
**i= la[;k& vuqlwfpr tkfr ,oa vuqlwfpr tutkfr laj{k.k d{k@24-02-2022@1812 fcgkj iqfyl eq[;ky;
¼vijk/k vuqla/kku foHkkx ,oa detksj oxZ izHkkx½ izs'kd] vij iqfyl egkfuns"kd detksj oxZ vijk/k vuqla/kku foHkkx] fcgkj] iVukA lsok esa] eks0 fljktqÌhu valkjh] ljdkj ds voj lfpo] lkekU; iz"kklu foHkkx] Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 11/47 fcgkj] iVukA izlax% vkidk i= la0& 11@vk0tk0&04@2022 lk0iz0 13864 fnukad 08-08-2022 fo'k;% Jh eukst izlkn] firk Jh jke,dcky izlkn] xzke& ck?kEcjiqj] iks0&iVftjok] Fkkuk Jhuxj] iz[kaM cSfj;k] ftyk& if"peh pEikj.k dh tkfr lR;kiu ds laca/k esa A mi;qZDr izklafxd fo'k;d Jh eukst izlkn] firk Jh jke,dcky izlkn] xzke& ck?kEcjiqj] iks0& iVftjok] Fkkuk Jhuxj] iz[kaM cSfj;k] ftyk& if"peh pEikj.k dh tkfr lR;kiu vQkd v[rj valkjh] iqfyl mik/kh{kd detksj oxZ ds usr`Ro esa xfBr f=lnL;h; Vhe ds }kjk djkbZ xbZ gSA tkap Vhe ds }kjk tkap izfrosnu N% i`'Bkas esa ¼08 vuqyXudksa lfgr½ lefiZr fd;k x;k gSA vr% tkap izfrosnu vuqyXudksa lfgr izsf'kr dh tk jgh gSA vuqyXud& ;Fkksifj A g0@& vLi'V 18-10-22 vij iqfyl egkfuns"kd detksj oxZ vijk/k vuqla/kku foHkkx] fcgkj] iVukA** lsok esa] vij iqfyl egkfuns'kd] detksj oxZ] vijk/k vuqla/kku foHkkx] fcgkj] iVukA izlax& eks0 fljktqíhu valkjh] ljdkj ds voj lfpo] lkekU; ç'kklu foHkkx] fcgkj] iVuk ds i= lå 11@vk0tk0 &04@2022 lk0iz0 13064 fnukad 08-08-2022 fo"k;%&Jh eukst dqekj] firk Jh jke,dcky çlkn] xzke ck?kEcjiqj] iksLV iVftjok] Fkkuk Jhuxj] ç[k.M cSfj;k] ftyk if'peh pEikj.k dh tkfr fofu'p; djus ds laca/k esaA egk'k;] mijksä çklafxd i= ¼vuqyXud lfgr½ esa vafdr fd;k x;k gS fd%& Jh larks"k dqekj ds }kjk Jh eukst çlkn] firk Jh jke,dcky çlkn] xzke ck?kEcjiqj iksLV&& Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 12/47 iVftjok] Fkkuk & Jhuxj] ç[k.M cSfj;k] ftyk if'peh pEikj.k ds fo:) xyr tkfr çek.k i= ds vk/kkj ij eqf[k;k ds in ij fuokZfpr gksus dh f'kdk;r jkT; fuokZpu vk;ksx] fcgkj iVuk esa nk;j fd;k x;k gSA nk;j ckn esa ;g mYysf[kr fd;k x;k gS fd Jh eukst çlkn viuh tkfr dk Nqikrs gq, xzke iapk;r cxgh &ck?kEcjiqj esa fnukad 29-11-2021 dks eqf[k;k ds in ij fuokZfpr gq, gSaA eukst çlkn ds }kjk eqf[k;k pquko uksfeus'ku isij esa viuh tkfr nkaxh vfr fiNM+k oxZ¼vuqlwfp&1½crk;k x;k gS tcfd okLro esa os dksbZjh @dq'kokgk tkfr fiNMk oxZ ¼vuqlwfp&2½ ds gSaA mä çklafxd i= ds lkFk jktLo vf/kdkjh vapy cSfj;k] ftyk if'peh pEikj.k ds dk;kZy; ls fuxZr çek.k i= laå BCCO/2021/2477934 fnukad 29-04-2021 dh Nk;kçfr ¼i`"V&28 ij½ layXu gS ftles Jh eukst çlkn firk Jh jke,dcky çlkn dks dq'kokgk ¼dksbZjh½ leqnk; dk lnL; crk;k x;k gS tks fiNMk oxZ ¼vuqlwfp&2½ ds gSA jktLo vf/kdkjh vapy cSfj;k] ftyk if'peh pEikj.k ds dk;kZy; ls fuxZr çek.k i= laå BCCO/2021/3036895 fnukad 26-06-2021 dh Nk;kçfr ¼i`"B la[;k 11 ij layXu½ gS ftlesa Jh eukst çlkn] firk Jh jke,dcky çlkn dks nkaxh leqnk; dk lnL; crk;k x;k gS tks vR;ar fiNMk oxZ ¼vuqlwfp&1½ ds gS A eqf[k;k eukst çlkn ds iwoZt Hkxsyw egrksa ¼ijnknk½ ds uke ls fuxZr [kfrgku dh Nk;kçfr ftlesa mudh tkfr dksbZjh vafdr gSA ¼i`"B la[;k&28 ij layXu½ eqf[k;k eukst çlkn ds }kjk vius pkpk uUnyky çlkn ls fnukad 27-09-2018 dks [kjhnh x;h tehu ls lacaf/kr dsokyk nLrkost dh Nk;kçfr ¼i`"B la[;k&27 ij layXu½ ftlesa eqf[k;k eukst çlkn dh tfr dksbZjh vafdr gSA rnuqlkj lkekU; ç'kklu foHkkx ds izklafxd i= esa vij iqfyl egkfuns'kd] detksj oxZ] vijk/k vuqla/kku foHkkx] fcgkj iVuk ls Jh eukst çlkn] firk Jh jke,dcky çlkn] xzke ck?kEcjiqj] iksLV&iVftjok Fkkuk Jhuxj] ç[k.M cSfj;k] ftyk if'peh pEikj.k dh tkfr fofu'p; djus dk vuqjks/k fd;k x;k gSA vijk/k vuqla/kku foHkkx ds vUrxZr tkfr fofu'p; gsrq f=lnL;h; fuxjkuh dks'kkax dk;Zjr gSA vij iqfyl egkfuns'kd detksj oxZ] vijk/k vuqla/kku foHkkx] fcgkj iVuk ds vkns'k la[;k 1506 fnukad 02- 09-2022 }kjk tkap gsrq xfBr r`rh; Vhe ftlds v/;{k vQkd v[rj valkjh] vosnd dh tkfr ds laca/k esa Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 13/47 tkapksijkar larq"V gksuk vko';d 'krZ gSA¼çfrfyfi layXu½ ¼vuqyXud&07½ fu"d"kZ %& lkekU; ç'kklu foHkkx] fcgkj] iVuk ds i= la0 11@vk0tk0&2022 lk0iz0 13864 fnukad 08-08-2022 ds }kjk çkIr i= ftles eukst çlkn ¼orZeku eqf[k;k] xzke iapk;r cxgh&ck?kEcjiqj iapk;r½ firk jke,dcky çlkn] xzke ck?kEcjiqj] Fkkuk Jhuxj] ç[k.M&cSfj;k] ftyk if'peh pEikj.k dh tkfr fofu'p; djus dk vuqjks/k fd;k x;kA orZeku eqf[k;k eukst çlkn] xzke iapk;r cxgh ck?kEcjiqj ds }kjk pquko ukfxus'ku isij esa viuh tkfr nkaxh vfr fiNMk oxZ ¼vuqlwfp&1½ crk;k x;k gS tcfd mudh tkfr dksbZjh dq'kokgk fiNM+k oxZ] ¼vuqlwfp&2½ dk gksus dk vkjksi yxkdj jkT; fuokZpu vk;ksx] fcgkj] iVuk esa ckn nk;j fd;k x;k gSA nk;j okn ds lkFk vuqyXud esa jktLo vf/kdkjh vapy cSfj;k] ftyk if'pe pEikj.k ds dk;kZy; ls fuxZr çek.k i= la0 BCCO/2021/ 2477934 fnukad 29-04-2021 dh Nk;k çfr ftlesa Jh eukst çlkn] firk Jh jke,dcky çlkn dks dq'kokgk ¼dksbZjh½ leqnk; dk lnL; crk;k x;k gS tks fiNM+k oxZ ¼vuqlwfp&2½ ds gSA jktLo vf/kdkjh vpy cSfj;k] ftyk if'peh pEikj.k ds dk;kZy; ls fuxZr çek.k i= laå BCCO / 2021 / 3036895 fnukad 26-06-2021 dh Nk;kçfr ftlesa Jh eukst çlkn] firk Jh jke ,dcky çlkn dks nkaxh leqnk; dk lnL; crk;k x;k gSA i= ds lkFk eqf[k;k eukst çlkn ds iwoZt Hkxsyw egrks ¼ijnknk½ ds uke ls fuxZr [kfrgku dh Nk;kçfr ftlesa mudh tkfr dksbZjh vafdr gSA eqf[k;k eukst çlkn ds }kjk vius pkpk uUnyky çlkn ls fnukad 27-09-2018 dks [kjhnh x;h tehu ls lacaf/kr dsokyk nLrkost dh Nk;k çfr ftlesa eqf[k;k eukst çlkn dh tkfr dksbZjh vafdr gSA tkap ds Øe esa eukst çlkn is0 jke,dcky çlkn dh tkfr ds laca/k esa vapykf/kdkjh cSfj;k vapy] ftyk i0 pEikj.k ls çfrosnu dh ekax dh x;hA vapykf/kdkjh cSfj;k vapy ds }kjk vius i=kad 494 fn0&9-9-2022 ds ek/;e ls çfrosnu lefiZr fd;k x;k gS fd ^^Jh eukst dqekj] firk Jh jke,dcky çlkn lkå cxgh c?kEcjiqj Fkkuk Jhuxj ç[k.M cSfj;k] ftyk if'pe pEikj.k dh tkfr dk tk¡p lacaf/kr gYdk deZpkjh ls djk;h xbZA gYdk deZpkjh }kjk [kfr;ku ds vk/kkj ij çfrosfnr fd;k x;k gS fd Jh eukst dqekj firk jke,dcky çlkn] lkå cxgh c?kEcjiqj] Fkkuk Jhuxj] ç[k.M cSfj;k] ftyk if'pe pEikj.k tkfr ds ^dksbZjh* gS] tks fcgkj gsrq fiNMk oxZ &2 ds vUrxZr vkrk gSA** Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 14/47 LFkkuh; ljiap fofiu dqekj ds }kjk eukst dqekj mQZ eukst çlkn dh oa'kkoyh tkap Vhe dks miyC/k djk;k x;k ftles Hkxsyw egrks ,oa uUnyk çlkn dks eqf[k;k eukst çlkn dk iqoZt crk;k x;k gSA ;gk¡ mYys[kuh; gS fd Hkxsyw egrks ds [kfrgku dh lR;kfir çfr esa Hkxsyw egrks dh tkfr dksbZjh vafdr gS] tks eukst çlkn ds iwoZt ¼ijnknk½ gSA larks"k dqekj is0 cStukFk lkg xzke cxgh ck?kEcjiqj Fkkuk Jhuxj ds }kjk tkap Vhe dks larks"k dqekj ¼ppsjs HkkbZ½ firk uUnyky çlkn] xzke cxgh ck?kEcjiqj ftyk if'peh pEikj.k dk ftyk inkf/kdkjh] if'pe pEikj.k ds dk;kZy; ls i= lå 126 fn0 19-6- 2002 ds }kjk fuxZr tkfr çek.k i= miyC/k djk;k x;k gS ftles larks"k dqekj dh tkfr dq'kokgk ¼dksbZjh½ gSA ;gk¡ mYys[kuh; gS fd larks"k dqekj uUnyky çlkn ds iq= gSa ,oa uUnyky çlkn tks eqf[k;k eukst çlkn ds lxs pkpk gSA ljiap ds }kjk fuxZr eqf[k;k eukst çlkn dh oa"kkoyh ls Hkh bldh iqf"V gksrh gSA eUrO;%& vr% bl çdkj LFkyh; tkap] xokgksa ds c;ku] Hkw&vfHkys[k dh çfr] vapykf/kdkjh cSfj;k vapy ,oa lkekU; ç'kklu foHkkx ls çkIr çfrosnu i=kad la0 61] iVuk fnukad 08-03-2011 ,oa i= lå 16023 fnukad 16- 12-2021 ds vk/kkj ij tkap Vhe bl fu'd'kZ ij igqaph gS fd Jh eukst izlkn] firk Jh jke,dcky izlkn] xzke cxgh ck?kEcjiqj] Fkkuk Jhuxj] ftyk if"peh pEikj.k tkfr dksbZjh ¼dq"kokgk½ gS] tks fiNM+k oxZ ¼vuqlwph&2½ ds gSa A tkap ls lacaf/kr fofM;ksxzkQh dh lh0Mh0 ¼vuqyXud&08½ g0@& lquhy dqekj g0@& pUnz izdk"k 06-10-22 6-10-22 ¼lquhy dqekj½ ¼pUnz izdk"k½ iqfyl voj fujh{kd] iqfyl fujh{kd vijk/k vuq0 fo0] vijk/k vuq0 fo0] fcgkj] iVuk A fcgkj] iVukA g0@& vLi'V ¼vQkd v[rj valkjh½ iqfyl mik/kh{kd] vijk/k vuq0 fo0] fcgkj] iVuk A**
24. 'The GAD' also brought on record the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 15/47 Gazette notification relating to the Constitution of Directorate for determining the caste of Other Backward Class, the Backward Class or Extremely Backward Class which read as follows:
^^la0 11@vk0&fo05&49@2008&lk0iz0&1567 lkekU; iz"kklu foHkkx ladYi 5 Qjojh 2014 fo'k;% vR;ar fiNM+k oxZ]] fiNM+k oxZ ,oa vU; fiNM+k oxZ ds tkfr izek.k&i=ksa dh tk¡p gsrq funs'kky; ds xBu ds laca/k esaA lh0MCY;w0ts0lh0 la[;k 4604@2008 Qjtkuk lck cuke fcgkj ljdkj ,oa vU; esa fnukad 29-01-2014 dks lquokbZ ds i'pkr~ ekuuh; mPp U;k;ky;] iVuk } kjk funs'k fn;k x;k gS fd ekuuh; mPpre U;k;ky; ds vkns'k ds vuqikyu esa xfBr dfefV esa vuqlwfpr tkfr@vuqlwfpr tutkfr ds lnL; lfEefyr gSa] ijUrq blesa fiNM+k oxZ ds lnL; lfEefyr ugha gSA ekuuh;
U;k;ky; ds mDr vkns'k dk vk'k; ;g gS fd vuqlwfpr tkfr@vuqlwfpr tutkfr dh Hkk¡fr vR;ar fiNM+k oxZ] fiNM+k oxZ ,oa vU; fiNM+k oxZ ds tkfr izek.k i=ksa dh tk¡p gsrq Hkh funs'kky; dk xBu fd;k tk,A 2- vr% jkT; ljdkj us HkyhHkk¡fr fopkj djus ds mijkUr ;g fu.kZ; fy;k gS fd ekuuh; mPpre U;k;ky; }kjk flfoy vihy la[;k 5854@94 ¼,jkbftax vkmV vkWQ ,l0,y0ih0¼lh0½ 14467@93½ dqekjh ek/kqjh ikfVy ,oa vU; cuke vij vk;qDr] tutkfr ¼vkfnoklh½ fodkl ,oa vU; esa ikfjr U;k; fu.kZ; ds vkyksd esa fuxZr rRdkyhu dkfeZd ,oa iz'kklfud lq/kkj foHkkx ¼lEizfr lkekU; iz'kklu foHkkx½ ds ladYi la[;k 3887 fnukad 08-11-2007 dh Hkk¡fr ljdkjh lsokvksa esa fu;qfDr vFkok fofHkUu 'kS{kf.kd laLFkkuksa ¼;Fkk rduhdh] xSj rduhdh] lkekU;] O;olkf;d vkfn½ esa ukekadu vkfn ds Øe esa vR;ar fiNM+k oxZ] fiNM+k oxZ ,oa vU; fiNM+k oxZ ds tkfr izek.k i=ksa dh tk¡p gsrq ,d Lora= funs'kky; dk xBu fd;k x;k tk,A Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 16/47 3- bl Øe esa lfpo@iz/kku lfpo] lkekU;
iz'kklu foHkkx ds fu;a=.kk/khu jkT; Lrj ij vR;ar fiNM+k oxZ] fiNM+k oxZ ,oa vU; fiNM+k oxZ ds tkfr izek.k i=ksa dh tk¡p gsrq ,d Lora= funs'kky; dk xBu fd;k tkrk gS] ftldk Lo:i fuEuor~ gksxk %&
(i) lkekU; lfefr
(ii) fuxjkuh lfefr
(i) lkekU; lfefr dk xBu fuEukafdr :i ls fd;k tkrk gS%& ¼d½ iz/kku lfpo@lfpo] lkekU; iz'kklu v/;{k foHkkxA ¼[k½ fiNM+k oxZ@vfr fiNM+k oxZ ls lnL;
lacaf/kr funs'kd@la;aqDr lfpo@ mi lfpo@voj lfpo Lrj ds inkf/kdkjh fiNM+k oxZ ,oa vfr fiNM+k oxZ dY;k.k foHkkx }kjk euksfurA ¼x½ fiNM+k oxZ@vfr fiNM+k oxZ ls lnL;
lacaf/kr funs'kd@la;Dqr lfpo@ mi lnL; lfpo@voj lfpo Lrj ds inkf/kdkjh lkekU; iz'kklu foHkkx }kjkeuksfurA bl lfefr dks lg;ksx gsrq vko';drkuqlkj lkekU; iz'kklu foHkkx ds v/khu dk;Zjr inkf/kdkjh@deZpkjh ls dk;Z fy;k tk,xkA
(ii) fuxjkuh dks"kkax dk xBu fuEukafdr :i ls fd;k tkrk gS %& jkT;k/khu tkyh tkfr izek.k i= laca/kh tk¡p vkfn dk;Z iqfyl egkfujh{kd ¼detksj oxZ½] vijk/k vuqla/kku foHkkx] fcgkj] iVuk }kjk fu"ikfnr fd;k tkrk gSA vr% fuxjkuh dks"kkax dk dk;Z iqfyl egkfujh{kd ¼detksj oxZ½] vijk/k vuqla/kku foHkkx] fcgkj] iVuk }kjk fu"ikfnr fd;k tk;sxkA 4- lkekU; lfefr }kjk dk;Z fu"iknu dh izfØ;k%& tkyh tkfr izek.k i= laca/kh f'kdk;r izkIr gksus ij lfpo@iz/kku lfpo] lkekU; iz'kklu foHkkx }kjk bldh tk¡p iqfyl egkfujh{kd ¼detksj oxZ½ vijk/k vuqla/kku foHkkx] fcgkj] iVuk }kjk djk;h tk;sxhA vijk/k vuqla/kku foHkkx ls izkIr fjiksVZ ij lkekU; lfefr }kjk fuEu izfØ;k viukrs gq, visf{kr dkjZokbZ dh tk;sxh %& Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 17/47 ¼d½ lkekU; lfefr] ;fn lrdZrk vf/kdkjh dh fjiksVZ ds vk/kkj ij ;g ikrh gS fd vkosnd dk lkekftd Lrj dk Dyse lgh ugha gS ;k lansgkLin gS ;k xyr :i ls Dyse izLrqr dj jgs gSa rc lfefr 1⁄4,sls vkosnd dks lrdZrk vf/kdkjh dh fjiksVZ dh izfr ds lkFk iathd`r Mkd ds jlhn lfgr] dkj.k crkvksa lwpuk i=] 'kS{kf.kd laLFkk ;k dk;kZy; izeq[k ds ek/;e ls HkstsaxsA dkj.k crkvksa lwpuk i= esa bl ckr dk mYys[k gksxk fd vkosnd viuk vH;kosnu ;k mÙkj dkj.k crkvks lwpuk i= izkfIr ds 15 fnuksa ds Hkhrj vkj{k.k izHkkjh] voj lfpo@mi lfpo] lkekU; iz'kklu foHkkx dks izLrqr djsa vkSj fdlh Hkh ifjfLFkfr esa vH;kosnu vFkok mÙkj izLrqr djus ds fy, 30 fnu ls vf/kd dk le; ugha fn;k tk;sxkA ;fn vkosnd ¼izek.k i= /kkjd½ mls lquus dk vkSj okn izLrqr djus dk volj pkgrk gS] rks ,slk vkosnu ;k mÙkj izkIr gksus ds i'pkr lfefr dh cSBd vkj{k.k izHkkjh voj lfpo@mi lfpo cqyk;sxk vkSj iz/kku lfpo] lkekU; iz'kklu foHkkx ,slh lfefr ds v/;{k ds :i esa vkosnd dks lquokbZ ,oa lk{; izLrqr djus dk iw.kZ volj nsxasA vkosnd dks ,slk volj nsus ds ckn Hkh vkosnd dks mlds vfHkHkkod ds ek/;e ls ;k vU; volj nsus ds ckn lfefr ,slh tk¡p dj ldsxh] ftlls vkosnd ds Dyse vkSj vU; vkifÙk;ksa ij fopkj djus ij 'kh?kz fu.kZ; ysus ds fy, ;fn vko';d gks rks mHk; i{kksa dks lqudj lfefr ,d mfpr fu.kZ; ysxhA ¼[k½ ,sls izdj.kksa tgk¡ lrdZrk vf/kdkjh dh fjiksVZ ¼izek.k i= /kkjd½ ds i{k esa gks rks lfefr dks fdlh dk;Zokgh dh vko';drk ugha gksxhA ¼x½ lfefr }kjk tk¡p fnu izfrfnu ds vk/kkj ij dh tk;sxh vkSj fdlh Hkh fLFkfr esa bls iw.kZ djus ds fy, 2 ekg ls T;knk le; ugha ysxhA ;fn tk¡p lfefr ;g ikrh gS fd vkosnd ¼izek.k i= /kkjd½ dk Dyse >wBk ;k vlR; gS rks lfefr ,slh tkfr izek.k&i= dks fujLr djrs gq, ,d mfpr vkns'k ikfjr djsxhA lfefr ;g Hkh fu.kZ; ys ldsxh fd tks O;fDr vR;ar fiNM+k oxZ] fiNM+k oxZ ,oa vU; fiNM+k oxZ ds xyr tkfr izek.k i= ds vk/kkj ij ykHk izkIr fd;s gS] tks blds ik= ugha gS] oSls ykHkkFkhZ ds fo:) vkijkf/kd eqdnek ntZ djk dj naMkRed dkjZokbZ dh tk;sxhA izek.k i= fuxZr djus okys inkf/kdkjh@deZpkjh ;fn tkylkth esa lafyIr ik, tkrs gSa rks muds fo:) fu;ekuqlkj vko';d dkjZokbZ dj ldsxhA 5- fuxjkuh dks"kkax }kjk dk;Z fu"iknu dh izfØ;k%& fuxjkuh dks"kkax }kjk fdlh O;fDr fo'ks"k ds fo:) izkIr f'kdk;r dh tk¡p ds Øe esa mlds iSr`d fuokl@fj'rs&ukrsnkj@Ldwy dkWyst esa miyC/k Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 18/47 vfHkys[k @Hkw&jktLo lacs/kh vfHkys[k@lekt ds x.kekU; O;fDr;ksa ls izkIr izfrosnu] tks lk{; ds fy, vko';d gks] ds vk/kkj ij dkjZokbZ dh tk;sxhA fuxjkuh dks"kkax }kjk tk¡p izfrosnu ds ,d ekg ds vUnj lkekU; lfefr dks fuf'pr :i ls lkSaik tk;sxkA 6- fu;qfDr inkf/kdkjh }kjk lkekU; ifjfLFkfr;ksa esa fu;qfDr ds Øe esa vkosnd ds tkfr izek.k i= dk lR;kiu izek.k&i= fuxZr djus okys lacaf/kr ftyk inkf/kdkjh }kjk gh djk;k tk;sxkA 7- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA vkns'k%& vr% ;g vkns'k gS fd loZlk/kkj.k dh tkudkjh ds fy, bls jktdh; xtV ds vlk/kkj.k vad esa izdkf'kr fd;k tk, vkSj bldh izfr egkys[kkdkj] fcgkj] iVuk@fcgkj yksd lsok vk;ksx@fcgkj deZpkjh p;u vk;ksx@fcgkj la;Dqr izos'k izfr;ksxrk ijh{kk i"kZn@dsUnzh; p;u i"kZn ¼flikgh HkÙkhZ½@lHkh foHkkx@ lHkh foHkkxk/;{k@lHkh ize.Myh; vk;qDr@lHkh ftyk inkf/kdkjh@eq[; ea=h lfpoky;@ fcgkj fo/kku lHkk@ fcgkj fo/kku ifj"kn dks lwpuk ,oa vko';d dkjZokbZ ds fy, Hksth tk,A fcgkj ds jkT;iky ds vkns'k ls] jktsUnz jke] ljdkj ds la;aqDr lfpoA**
25. According to the said counter affidavit, the inclusion of caste 'Dangi' in the list of Backward Classes in the year 1995-96 does not mean that this caste was not in existence prior to the said year. It also highlighted the fact that the report submitted by State Commission for Backward Classes does not indicate that the 'Dangi' is sub caste of 'Koeri'. It is a purely product of the mind of the petitioner only to save his skin.
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 19/47
26. It also clarified that the inclusion or deletion of a caste from a caste list of the State is a continuous process and it is done on the recommendation of the respective Commissions of the State meant for the purpose. In this very process, the caste 'Dangi' was included in Backward Class list in the year 1995 and in the list of Extremely Backward Class in the year 2015.
27. It is to be noted that the District Magistrate, West Champaran, Bettiah in its letter no. 462 dated 19.05.2022 addressed to the Special Work Officer of 'the Commission' reported as follows:-
^^¼ftyk iapk;r dk;kZy; ½ i=kad& 462 @ iapk;r izs'kd] dqUnu dqekj] Hkk-iz-ls-
ftyk inkf/kdkjh] if'pe pEikj.k] csfr;kA lsok esa] fo'ks"k dk;Z inkf/kdkjh] jkT; fuokZpu vk;ksx] fcgkj] iVukA csfr;k] fnukad&19@05@2022 fo"k;% okn la[;k&72@2021 larks"k dqekj cuke eukst çlkn esa çfroknh ds }kjk nk;j tokc ds vkyksd esa iwjd çfrosnu dk çs"k.kA çlax& jkT; fuokZpu vk;ksx ds i=kad 1697 fnukad 09-05 2022 egk'k;] mi;qZä fo"k;d çklafxd i= ds vkyksd esa dguk gS fd jkT; fuokZpu vk;ksx] fcgkj esa nk;j okn la[;k 72@2021 larks"k dqekj cuke eukst çlkn ls lacaf/kr foefr ekeys esa la;qä tkap ftyk xksiuh; 'kk[kk] if'pe pEikj.k] csfr;k ds i=kad 2794@xks- Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 20/47 fnukad 25-10-2021 ls vij lekgÙkkZ] if'pe pEikj.k] csfr;k ds v/;{krk esa dfeVh xfBr djrs gq, djkbZ x;hA rnkyksd esa vij lekgÙkkZ if'pe pEikj.k] csfr;k ds i=kad 2884@jk- fnukad 01-11-2021 ls çkIr la;qä tkap ds vkyksd esa bl dk;kZy; ds i=kad 45@iapk;r fnukad 11-02-2022 ds }kjk çfrosnu Hkstk tk pqdk gSA ¼Nk;kçfr layXu½ mYys[kuh; gS fd le:i ekeys esa ftuds }kjk nkaxh tkfr dk çek.k i= tkjh djus gsrq ^^dksbZjh** vafdr jktLo dkxtkr çLrqr fd;k tk jgk gS ds i{k esa tkfr çek.k i= fuxZr djus ds fcUnq ij ftyk dY;k.k 'kk[kk] if'pe pEikj.k] csfr;k ds i=kad 1350 fnukad 25-10-2021 ls lkekU; ç'kklu foHkkx] fcgkj] iVuk ls ekxZn'kZu dh ekax dh x;h Fkh] ftlds vkyksd esa ljdkj ds voj lfpo] lkekU; ç'kklu foHkkx] fcgkj] iVuk ds i=kad 16023 fnukad 16-12-2021 ds }kjk ekxn'kZu çkIr gS ftlesa mYys[k gS fd ^^tkfr çek.k&i= fuxZr djrs le; vkosnd ds firk@iwoZt ds jktLo vfHkys[k ¼iFkk [kfr;ku] nku&i=] Hkwfe laca/kh nLrkost] Hkwfeghuksa dks vkoafVr tehu ls lacaf/kr vfHkys[k vkfn½ dks vk/kkj cuk;k tk;A bu vfHkys[kksa dh vuqiyC/krk dh fLFkfr esa LFky fujh{k.k dj tkap çfrosnu dks Hkh ;FkkfLFkfr ;Fkkle; tkfr çek.k i= fuxZr djus gsrq vk/kkj cuk;k tk ldrk gSA tgk¡ rd foHkkxh; i= la[;k 1006 fnukad 06-04-2011 esa vafdr fn'kk&funsZ'k ;k ç'u gS bl lanHkZ esa Li"V fd;k tkrk gS fd tkfr çek.k i= fuxZr djus okys vf/kdkjh dk vkosnd dh tkfr ds laca/k esa tkapksijkar larq"V gksuk vko';d gS**¼Nk;kçfr layXu½A vij lekgrkZ] if'pe pEikj.k] csfr;k dh v/;{krk esa xfBr ukFk ny ds }kjk Hkh tkap ny esa Li"V mYys[k fd;k x;k gS fd ^^Jh eukst çlkn] firk&Jh jke,dcky çlkn] ekrk Jhefr 'kkafr nsoh] lkfdu&cFkEcjiqj] iapk;r cxgh c/kEcjiqj] Fkkuk&Jhuxj iqtgkWa] ç[k.M cSfj;k ftyk&if'pe pEikj.k] nkaxh tkfr dk çek.k i= tkjh djus ds vk/kkj ds :i esa muds iwoZt ds uke fofufnZ"V losZ [kfr;ku Jh çfr esa dkSe ÞdksbZjhß djds vafdr gS] nksuksa gh tkfr ds oxZ esa dkQh varj gS tgk¡ nkaxh tkfr vR;ar fiNMksa oxksaZ dh ¼vuqlwph&1½ ds Øekad 127 ij vafdr gSA ogh dq'kokgk ¼dksbZjh½ fiNM+s oxksaZ dh ¼vuqlwph&2½ ds Øekad&4 ij vafdr gSA tk¡p ny ds }kjk loZlEefr fu.kZ; fy;k fd nkaxh tkfr dk fuxZr çek.k i= jí ¼Cancel½ fd;k tkuk visf{kr gS** ¼Nk;kçfr layXu½A la;qä tkap ny ,oa foHkkxh; v|ru funsZ'k ds vkyksd esa vapykf/kdkjh] cSfj;k ds }kjk Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 21/47 o"kZ 2021 esa fuxZr ^^nkaxh** leqnk; ds çek.k i= BCCCO/20213036895 fnukad 26-06-2021 dks fujLr djrs gq, i=kad 69 fnukad 02-02-2022 ds ek/;e ls lalwfpr fd;k x;k gSA ¼Nk;kçfr layXu½ fofnr gks fd ifjoknh ds }kjk ljdkj ds la;qä lfpo] lkekU; ç'kklu foHkkx] fcgkj] iVuk ds i=kad 106 fnukad 06-04-2011 ds vk/kkj ij orZeku esa nkok fd;k tk jgk gS fdUrq blh ifjçs{; esa v|ru foHkkxh;
i=kad 16023 fnukad 16-12-2021 ls Li"V funsZ'k gS fd tkfr çek.k i= fuxZr djus gsrq jktLo dkxtkr dks vk/kkj crk;k tkuk gS rFkk bldh vuqiyC/krk dh fLFkfr esa gh tk¡p çfrosnu dks vk/kkj cuk;k tkuk gS ç'uxr ekeys esa jktLo dkxtkrksa esa vkosnd dh tkfr ^^dksbZjh** vafdr gS rFkk la;qä tk¡p ny ds }kjk tk¡p çfrosnu dks fujLr djus dh Li"V vuq'kalk dh x;h gSA mijksä çfrosnu ds lkFk lquokbZ dh fu/kkZfjr frfFk dks mifLFkr gksus gsrq Jh euh"k dqekj] ftyk iapk;r jkt inkf/kdkjh] csfr;k dks çkf/k--r fd;k tkrk gSA vuqyXud& ;FkksDrA fo'oklHkktu g0@& vLi'V ftyk inkf/kdkjh if'pe pEikj.k] csfr;kA**
28. The Election Commission, Bihar, Patna (Respondent Nos. 1 to 3) too filed its counter affidavit and submitted amongst other the following facts:-
" 8. That before giving para-wise reply to the present writ application the answering Respondent proposed to brought certain facts to the notice of this Hon'ble Court, which are as follows:
(i) The Respondent No. 4 viz.
Santosh Kumar filed a complaint before the State Election Commission on 06.12.2021 alleging therein that the Petitioner does not belong to Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 22/47 Extremely Backward Caste and as such he is disqualified to hold the post of Mukhiya under the Bihar Panchayat Raj Act, 2006.
(ii) That on the aforesaid complaint of Respondent No. 4. Case No. 72 of 2021 was instituted in the State Election Commission and the State Election Commission vide Letter No. 1697 dated 09.05.2022 called for a report from the District Magistrate -cum- District Election Officer (Panchayat), West Champaran, Bettiah. In pursuance of the aforesaid letter the District Magistrate -cum- District Election Officer (Panchayat) submitted a report before the State Election Commission vide Letter No. 462 dated 19.05.2022 stating therein that the Joint Committee has specifically stated that the Petitioner belongs to Koeri Caste and as such his caste certificate be cancelled.
(iii) That it is stated and submitted that the matter was heard on 15.07.2022 before the State Election Commission and after hearing the parties the State Election Commission found that disputed question of fact arose before the Commission with regard to caste of the Petitioner and relegated the matter to the Caste Scrutiny Committee in the light of order of the Hon'ble Court dated 21.06.2022 in CWJC No. 19084 of 2021 (Baidhnath Singh Vs. State).
(iv) That it is stated and submitted that the Caste Scrutiny Committee finally Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 23/47 decided the matter on 12.01.2023 and forwarded it to the State Election Commission vide Memo No. 863 dated 12.01.2023, which is Annexure-12 to the writ application."
29. The further stand of 'the Commission' is/are that:
"14. That with regard the statements made in paragraph no. 9 of the writ petition it is stated and submitted that section 136(1) of the Bihar Panchayat Raj Act, 2006 provides as follows:
136. Disqualification for Membership - (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post of Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zilar Parishad, if such person-
From perusal of the aforesaid provision, it is evident that the State Election Commission has power to decide pre &post election disqualification."
30. 'The Commission' also reasoned on referring the matter to 'the Committee' stating :
"17. That the statements in paragraph nos. 12 & 13 of the writ petition under reply is matter of records and in this respect it is Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 24/47 stated and submitted that from Annexure-R 1-3/1, it is evident that several documents were produced by the District Magistrate -cum- District Election Officer (Panchayat), West Champaran, Bettiah with regard to caste of a Petitioner, which was disputed by him and due to this the Commission has relegated the matter to the fact finding body, which is Caste Scrutiny Committee and kept the matter pending till the receiving of report from the caste scrutiny committee."
31. The respondent no. 4, Santosh Kumar, who complained before 'the Commission' in his counter affidavit stated as follows:
"8. That after minutely going through the report as submitted by the Caste Scrutiny Committee dated 06.10.2022, it will transpire that despite giving ample opportunities to petitioner he chose prime facie not to appear and rather appeared through his learned lawyer who could not defend the fraud played by petitioner and taking into consideration and after hearing the parties the said report of Caste Scrutiny Committee dated 06.10.2022 has been passed. The said report is cogent and has been taken into consideration all aspects and relevant and material facts/documents.
9. That the petitioner maliciously to waste the precious and judicial time of the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 25/47 Hon'ble Court has filed the present case just to linger the Election Case No.72/2021 and the order of status quo has been passed behind the back of present respondent by complete misrepresentation of facts. The order of status quo deserves to be vacated and the instant writ petition deserves to be dismissed."
10. that the prayer of petitioner is for quashing the order dated 15.07.2022 passed by respondent no. 2 in Election Case No. 72/2022 (Santosh Kumar Vs. State of Bihar & Ors.). It is humbly submitted that the said order has been passed after hearing the parties at length and is free from flaws hence the order dated 15.07.2022 merely not being in favour of writ petitioner does not deserves to be quashed."
32. Further, the supplementary counter affidavit of the respondent no. 4 read as follows:
"6. That the Respondent no.4 is bringing on record the current/recent notification by Government of Bihar Cast Scrutiny Committee which clearly decategorized Koiri/Kushawa (at Sr. No.26) from Dangi (at Sr. No.86) it also the shows that both are separate caste and not the sub caste of each as stated and claimed by writ petitioner and thus now there shall not be an iota of doubts regarding the arguments advanced by the petitioner that Dangi is sub caste of Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 26/47 Koiri/Kushawa."
33. Further, in paragraph 7, it is stated that :-
"7. That it will be pertinent to bring on record that the father of writ petitioner namely Ramekbal Prasad as well as his grandfather namely Lakhraj Mahto has executed earlier a sale deed in which the caste of them is mentioned as Koiri/Kushwaha as well as in some other sale deed as executed by his family members the everywhere has been mentioned/stated as Koiri/Kushwaha, hence it further cements the case/claim of private respondent no.04."
34. Heard learned counsel for the parties.
35. Mr. S.B.K. Mangalam, learned counsel for the petitioner submits that the letter/memo no. 673 dated 08.03.2011 issued by the Joint Secretary of the 'the GAD' had given guidelines for issuance of the caste certificate, the income certificate, the residential certificate as also the certificate relating to creamy layer.
36. It is his submission that in continuation thereof, another letter was issued by the Joint Secretary which diluted the aforesaid letter dated 08.03.2011 inasmuch as letter/memo no. 1006 vide dated 06.04.2011 addressed to the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 27/47 District Magistrate, Munger, it was informed that in case, in the 'khatian' of the applicant, it has been inscribed 'koeri' (Kushwaha) and if he is claiming caste certificate for 'Dangi' caste, the Circle Officer can do the inspection of the area/local survey and accordingly, can issue certificate of 'Dangi' (Annexure P -16 to the rejoinder to the counter affidavit filed on behalf of the respondent).
37. It is his submission that though the letter/memo no. 673 dated 08.03.2011 talks about the revenue documents to be the foremost document for granting of such certificate, a clarificatory letter was already in place. As such, only because the caste of one his ancestor, Bhagelu Mahato was recorded as 'Koeri' (Kushwaha) in the revenue record, that cannot be the ground for disallowing his claim for granting caste certificate of 'Dangi'.
38. His submission is that earlier 'Dangi' was part of 'Koeri' (Kushwaha) and only in the year 1995, it was separated and made an independent entity as OBC and later in the year 2015, it was brought under the category of Extremely Backward Class. Thus, there is nothing wrong on his part in getting caste certificate of 'Dangi' and contesting the election from Extremely Backward Class seat.
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 28/47
39. The next submission put forward by Mr. Mangalam is that the proceeding conducted by the Caste Scrutiny Committee was not done in a conducive manner inasmuch as despite his illness, when his Junior Counsel made a prayer for adjournment, the same was refused and even he was threatened.
40. The further submission is that altogether 9 points were put forward by him in support of the case that though being a 'Dangi' was part and parcel of the 'Koeri' (Kushwaha) and as such the Circle Officer rightly issued the caste certificate to him, the same were not considered and/or incorporated in the order. He has taken this Court to the different paragraphs of the counter affidavit of the State to show that his claim that the document produced by him has not been considered, there is no answer.
41. It is his case that the report submitted by 'the CID' under the signature of its Additional DGP vide letter no. 1812 dated 18.10.2022 (Annexure-P-11&P11/1 to the petition) formed the basis for the Caste Scrutiny Committee to take up the proceedings. He submits that while the committee accepted the statement of some of the local villagers (which forms incorporated in the order) that the petitioner belongs to 'Koeri' Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 29/47 (Kushwaha), on the other hand, those villagers/local representatives who gave affidavits in his support was/were rejected holding that the same are subsequent to the findings arrived at by 'the CID'.
42. He next submits that contrary to the fact that documents were provided to the committee, it has been recorded in paragraph-8 that despite giving sufficient opportunity, the petitioner failed to bring anything on record or give a statement in his favour. He submits that he has already stated that prayer on the ground of his illness was rejected summarily by the committee.
43. The next submission of the learned counsel for the petitioner is that the only document on which the respondents are harping is that his ancestor Bhagelu Mahato has been recorded as 'Koeri' (Kushwaha) in the revenue records.
44. So far as the stand of the respondents that in a sale deed of 2018 in which the petitioner was a buyer, his caste has been declared as 'Koeri' (Kushwaha) (as contained in Annexure-R-4/B series to the counter affidavit on behalf of the respondent no. 4), he submits that the buyer and/or the seller seldom go through the facts recorded in the sale deed Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 30/47 and in a routine manner signs the document.
45. He submits that the petitioner also failed to see the anomaly that his caste has been inscribed as 'Koeri' in the sale deed. He reiterates that the documents of the local representatives in his support was rejected only on the ground that the same are subsequent to the enquiry that started in July, 2022.
46. The further submission is that on the one hand, the documents of the local representatives in his favour were rejected in paragraph-5 of the findings of the committee, twice the caption of prominent people have been given to show that he belongs to 'Koeri' caste.
47. Learned counsel for the petitioner thus submits that:
(i) he belongs to 'Dangi' caste which was part of 'Koeri' (Kushwaha) and only in 1995, it was separated and later became Extremely Backward Caste;
(ii) the Joint Secretary in its clarificatory letter dated 06.04.2011 had given instruction that even if earlier it was inscribed as 'Koeri' (Kushwaha), after ground inspection, Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 31/47 'Dangi' caste certificate can be granted;
(iii) the documents supporting his case being a 'Dangi' by the local representatives was/were not taken note of;
(iv) despite the illness of the petitioner's counsel, time was not granted and on erroneous consideration, he was declared belonging to 'Koeri' (Kushwaha).
48. In support of his case, he has drawn attention of this Court to the order of the Hon'ble Apex Court in the case of Kumari Madhuri Patil & Anr. (supra) with specific reference to paragraph 13 (11) and 13 (13) which read as follows:
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single, Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136."
Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 32/47
49. He further took this Court to paragraph 15 of the said judgment which read as follows:
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 is 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 records 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."
50. He thus submits that the Court only has to see whether the committee considered all the relevant materials and applied its mind or not and each case be considered in the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 33/47 backdrop of its own fact.
51. He next cited the case of Kranti Associates Pvt. Ltd & Anr. Vs. Mashood Ahmad Khan & Ors. reported in (2010) 9 SCC 496 with specific reference to paragraph 47 (j) (k) & (l) which read as follows :
"(j) insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(1) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process."
52. The said decision has been cited by the petitioner to support his case that the enquiry report of 'the CID' was incorporated by the Caste Scrutiny Committee without applying its own mind and/or the materials on record.
53. The next case cited by the petitioner is an Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 34/47 order of the Patna High Court (Full Bench) in the case of Rajani Kumari & Ors. Vs. State Election Commission & Ors. reported in 2019 (4) PLJR 673 with specific reference to paragraph 184 which read as follows :
"184. We are in agreement that the State Election Commission has got power under sub- section (2) of Section 18 of the Bihar Municipal Act, 2007 and sub-section (2) of Section 136 of the Bihar Panchayat Raj Act, 2006 to consider an issue of pre or post-election disqualification of a candidate subject to a caution which we have pointed out in our judgments in respect of a case which is in the nature of a purely election dispute and then a matter which cannot be decided without adducement of evidence by a competent court and authority in accordance with law. The State Election Commission shall entertain and consider the 'disqualification issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission suo-moto or by any other person, the Commission shall at the first instance either enquire whether it is a purely election and only when it is found that the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 35/47 dispute brought before it is not a purely dispute election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials. Whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified, the Commission would be required to relegate the parties to a competent court/tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo-moto or otherwise.
Question No. II-
Whether the provisions of Section 476 read with Section 479 of the Bihar Municipal Act, 2007 can be rendered redundant or otiose, if the State Election Commission is conferred power to disqualify a candidate after election, as the disqualification of a candidate is a ground on which election petition can be filed?"
54. He submits that such contagious issue has to be decided after taking evidence and till then 'the Commission' cannot take a decision on such complaint. Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 36/47
55. He concludes by submitting that on the basis of the facts that has come, the writ petition is fit to be allowed so that he can continue as the 'Mukhiya' of Gram Panchayat Raj, Baghambarpur under Bariya Block, West Champaran.
56. Mr. Amit Srivastava, learned Senior Counsel represents the respondent no. 4. He also relied on the 'khatiyan' of the ancestor of the petitioner to show that the petitioner belongs to 'Koeri' caste.
57. It is the further case of the respondent no. 4 that he had preferred objection against the claim of the petitioner of being a "Dangi' caste before the concerned District Magistrate even prior to the election on 21.10.2021 and later it was submitted before 'the Commission'.
58. It has further been submitted that prior to the election, the petitioner got a wrong Caste Certificate issued showing him as 'Dangi Caste', contested the election on Extremely Backward Class seat and won and thus is also liable for prosecution.
59. Mr. Srivastava, learned Senior counsel submits that he would like to rebutt the case of the petitioner point by point and in continuation of that, he took this Court Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 37/47 again to the letter/memo no. 1006 dated 06.04.2011 issued by 'the GAD' (Annexure-P/16 to the writ petition).
60. According to him, the guidelines were issued on 08.03.2011 and a perusal at the bottom of the letter dated 06.04.2011 clearly shows that it has been issued pursuant to the information sought by the Commissioner, Munger Division on 04.03.2011 i.e. prior to the issuance of letter dated 08.03.2011 by 'the GAD'.
61. The further submission is that even the initial information of the letter show that the District Magistrate, Munger has been informed pursuant to his letter dated 01.03.2011. He as such submits that unlike the guidelines dated 08.03.2011 that was issued to all concerned in the State of Bihar, the present letter was district specific and sent to the District Magistrate, Munger only with reference to their query relating to an individual.
62. It is his submission that even otherwise, the content of the letter was very clear that the Circle Officer has to do the ground enquiry and only after he finds that the concerned person belongs to 'Dangi' caste, the certificate can be issued to him.
63. He thus reiterates that it was district Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 38/47 specific, person specific and communication made pursuant to the letters sent to it on 01.03.2011 and 04.03.2011 i.e. prior to 08.03.2011.
64. The next submission is that 'the CID', Bihar, Patna which made the initial enquiry and submitted a categorical report vide letter no. 1812 dated 18.10.2022 that the petitioner belongs to 'Koeri' caste, the said finding has not been challenged by the writ petitioner and in that background alone, the same is fit to be dismissed.
65. His next contention is that the order in question has been passed by the Caste Scrutiny Committee and not 'the GAD'. However, again, the said committee has not been made party-respondent and on this ground too, the petition needs to be dismissed for non-joinder of necessary party.
66. He further took this court to the Gazette notification of 1996 relating to the Other Backward Class (Bihar Act, 6, 1996) to show that both Kushwaha/Koeri as well as 'Dangi' have been incorporated separately inasmuch as while the Kushwaha/Koeri was placed at Serial No. 4, the 'Dangi' Caste has been placed at serial no. 37. (Annexure R- 5/D to the second supplementary counter affidavit on behalf of Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 39/47 the respondent no. 4).
67. He again took this Court to Annexure- R/7/D wherein all the Castes of the State of Bihar (total 251 to be precise) have been incorporated in which again at serial no. 26, Kushwaha/Koeri finds place whereas at serial no. 86, the 'Dangi' Caste has been recorded separately.
68. He lastly took this Court to the sale deed that was executed in favour of the petitioner in 2018 where the petitioner described himself to be a 'Koeri' caste. He as such submits that the caste of the petitioner for sale deed is 'Koeri' (Kushwaha) whereas for contesting elections, he is a 'Dangi' as the seat is reserved for Extremely Backward Class.
69. He relied on an unreported judgment of Patna High Court in Khusboo Ara Vs. The State of Bihar & Ors. in CWJC No. 5581 of 2023 disposed of on 27.06.2023 with specific reference to paragraph -48 which read as follows.
48. The findings of 'the Committee' dated 07.12.2021 is an unimpeachable evidence unless set aside by a competent Court. In the said findings communicated vide memo no. 14561 of 07.12.2021 'the Committee' came to a definite conclusion that the lady belongs to 'Sheikh' caste and not 'Sheikhra' caste to get benefits under the E.B.C. Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 40/47 category.
70. He as such submits that the conclusion arrived at by 'the Committee' that the petitioner is 'Koeri' (Kushwaha) is an unimpeachable piece of evidence and in that background, the writ petition is fit to be dismissed.
71. The State on the other hand submits that a bare perusal of the findings of the Caste Scrutiny Committee shows that sufficient opportunity was given to the petitioner before it came to a finding and passed an order holding him to be 'Koeri' (Kushwaha).
72. It is his further submission that the said findings being an unimpeachable evidence, the petitioner do not have any case. He thus supporting the submissions put forward by the learned Senior counsel for the respondent no. 4 submits that the case is fit to be dismissed.
73. The State Commission, on the other hand represented by Mr. Sanjiv Nikesh submits that the case itself is premature inasmuch as pursuant to the complaint preferred by the respondent no. 4, no decision has been taken yet by the Election Commission in Case No. 72 of 1922 (Santosh Kumar vs. State of Bihar).
74. It is his further submission that the petitioner has jumped the line and instead of contesting the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 41/47 matter and putting the facts before the Election Commission wants the same to be set aside and in that background, no relief can be granted to him.
75. This Court has gone through the facts of the case as also the submissions put forward by the rival parties and finds force in the averments made by the learned counsels appearing on behalf of the respondent no. 4, the State as also the Election Commission.
76. As per the documents on record, the 'Dangi' caste was incorporated as a separate caste in the year 1995 and has not been carved out from Kushwaha/Koeri as pointed out by learned Senior Counsel for the respondent no. 4 and is also reflected from the Gazette notification.
77. Further, as per the letter no. 673 dated 08.03.2011 issued by 'the GAD', the land revenue record is the foremost document for the issuance of caste certificate and only in its absence, the other documents have to be relied upon.
78. In the case of the petitioner, the admitted fact is that his ancestor, Bhagelu Mahato has been shown in the 'Khatiyan' as 'Koeri' (Khushwaha) .
79. Even the petitioner purchased the land in 2018 showing himself to be of 'Koeri' caste. Further, as per the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 42/47 findings of the Caste Scrutiny Committee; one Santosh Kumar, son of Nandlal Prasad of village Baghambarpur, P.O. Patjirwa, Shree Nagar, West Champaran who is a Government Teacher in Bhagambarpur Panchayat and own cousin of petitioner is having a 'Koeri' caste certificate.
80. In view of such unimpeachable evidences before the Caste Scrutiny Committee which included the report submitted by 'the CID' showing the petitioner to be a 'Koeri' (Khushwaha) caste; it rightly came to the finding communicated vide memo no 863 dated 12.01.2023 which cannot be faulted upon.
81. Learned Senior Counsel for the respondent no. 4 has rightly pointed out that the Inquiry Committee of 'the CID' which submitted its report to the Caste Scrutiny Committee (and formed basis for coming to the said conclusion vide letter no. 1812 dated 18.10.2022) also incorporated the fact that the Santosh Kumar, cousin brother of the petitioner and the Government Teacher has got a caste certificate showing himself as a 'Koeri' caste which comes under OBC category.
82. Against the said unimpeachable evidence/documents/records, the only document on which the Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 43/47 petitioner is harping upon is a letter issued by the Joint Secretary dated 06.04.2011 which was communicated to the District Magistrate, Munger, copy whereof was sent to the Commissioner, Munger Division, Munger in response to their query dated 01.03.2011 and 04.03.2011. The same has already been rebutted/clarified by the learned Senior Counsel for the respondent no. 4 as incorporated above that it was district specific, person specific and even then direction was given to have enquiry done by the Circle Officer.
83. Having gone through the matter as also the rival submissions, the facts that are on record is/are that:
(i) in the Land Revenue Record, the ancestor of Bhagelu Mahto has been inscribed as 'Koeri' in the 'khatiyan';
(ii) the petitioner himself purchased a land in 2018 showing himself as 'Koeri' caste.
(iii) as per the gazette notification (letter no. 673 dated 08.03.2011), the revenue record of father/ancestor is one of the important criteria for verification;
(iv) further only in its absence, Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 44/47 the ground verification is/are required;
(v) the 'Sarpanch' provided ganeology showing relationship of the petitioner with late Bhagelu Mahato;
(vi) 'Dangi' caste is different from 'Koeri' caste which came to be included earlier under Other Backward Class in 1995 and later in 2015 under Extremely Backward Class;
(vii) 'the CID' accordingly
submitted its report;
(viii) the Caste Scrutiny
Committee thereafter came to a definite finding that the petitioner does not belong to the 'Dangi' Caste.
84. So far as the cases cited by the petitioner are concerned, in the case of Kumari Madhuri Patil (supra), the Hon'ble Apex Court held that the High Court is not court of appeal to appreciate the evidence. The Committee which is empowered evaluate the evidence placed before it before recording finding of facts which ought to prevail unless found by the judicial review by any High Court subject to limitation of interference with finding of facts. The Hon'ble Apex Court further held that when the Committee considers all the material Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 45/47 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 have led the committee ultimately record the finding. Each case must be considered in the backdrop of its own facts.
85. In this case, it is very clear that the committee has considered and recorded that :
(i) in the 'khatian' (revenue records) the ancestor of the Bhagelu Mahato was described as 'Koeri' (Khushwaha);
(ii) the petitioner while purchasing the land in 2018 described himself as 'Koeri';
(iii) the cousin brother of the petitioner namely, Santosh Kumar is having 'Koeri' caste certificate;
(iv) in the light of the said facts recorded/findings given, in the opinion of this Court, Caste Scrutiny Committee has passed the test of Kumari Madhuri Patil (supra). Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 46/47
86. So far as the case of Kranti Associates Pvt. Ltd (supra) cited by the petitioner is concerned, the reasons have already been assigned by the Caste Scrutiny Committee for coming to a finding and in the opinion of this Court, it cannot be considered rubber stamp reasons.
87. Regarding the Rajani Kumari (supra) case, the petition is still pending before the State Election Commission and it has yet not decided the matter.
88. This Court has also takes note of the case of Khusboo Ara (supra) cited by the learned Senior Counsel in which it was held that the decision arrived at by the Committee cannot be faulted upon.
89. This Court thus observes that the petitioner cannot be allowed to change colours like the Chameleons inasmuch as he cannot become a 'Koeri' (under OBC category) to purchase a land in 2018 and immediately thereafter turn into a 'Dangi' (under EBC category) to contest 2021 election from an Extremely Backward Class seat.
90. In the aforesaid backdrop and taking into account the rival submissions put forward by the parties and Patna High Court CWJC No.14258 of 2022 dt.09-08-2023 47/47 perusing the materials on record, in the considered opinion of the Court relief sought for by the petitioner cannot be extended to him.
91. The writ petition fails and is accordingly, dismissed.
(Rajiv Roy, J) Jagdish-
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