Patna High Court
Birendra Kumar @ Ganesh Paswan vs The State Election Commission on 13 September, 2024
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6976 of 2024
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Birendra Kumar @ Ganesh Paswan S/O Ballu Prasad @Ballu Paswan R/O
Mohalla- Near Devi Asthan, Janta Colony, Bairagi, P.S. Delha, District- Gaya
... ... Petitioner/s
Versus
1. The State Election Commission Sone Bhawan Birchand Patel Path, Patna
through the State Election Commissioner.
2. The State Election Commissioner, The State Election Commission,Sone
Bhawan Birchand Patel Path, Patna
3. The Secretary, State Election Commission, Sone Bhawan Birchand Patel
Path, Patna.
4. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
5. The Additional Chief Secretary, General Administration Department, Gov-
ernment of Bihar Patna.
6. The District Magistrate, Gaya
7. The Senior Superintendent of Police, Gaya.
8. The Deputy Superintendent of Police (Weaker Section), Crime Investigation
Department, Bihar
9. Shyamdeo Paswan S/O Late Maheshwar Paswan, R/O Bhusuanda Salempur,
Nauranga, P.S. Mufasil, Ward Number 53, District - Gaya.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Amit Srivastava, Sr. Advocate
Ms. Mayuri, Advocate
For the State : Mr. Manish Kumar, G.P.-4
For the Resp. No. 9 : Mr. Pushkar Narain Shahi, Sr. Advocate
For the SEC : Mr. Ravi Ranjan, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
Date : 13-09-2024
Heard Mr. Amit Srivastava, learned Senior Counsel
for the petitioner, Mr. Pushkar Narain Shahi, learned Senior
Counsel for the respondent no. 9, Mr. Manish Kumar, learned
G.P.-4 for the respondent nos. 4 to 8 and Mr. Ravi Ranjan for
the respondent nos. 1 to 3.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024
2/86
(A). PRAYER:
2. The present writ petition has been preferred for the
grant of following relief/s:-
"(i) Issuance of a direction, order or
writ, including a writ in the nature of
certiorari quashing the order dated
06.10.2023passed by the State Election Commissioner whereby the matter has been relegated to the Caste Scrutiny Committee of the General Administration Department for the determination of caste/social status of the petitioner.
(ii) Issuance of a direction, order or writ, including a writ in the nature of mandamus directing that the State Election Commissioner exercising quasi-judicial power is under obligation to refer matters to caste scrutiny committee only on the basis of unimpeachable evidence against the elected representatives and not based on vague complaints filed before it.
(iii) Issuance of a direction, order or writ, including a writ in the nature of certiorari quashing Letter Number 203 dated 07.03.2024 whereby a Joint Enquiry Report was submitted by the three membered committee to the General Administration Department with regard to the caste/ social status of the petitioner.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 3/86
(iv) Issuance of a direction, order or writ, including a writ in the nature of mandamus directing the Respondent Authorities not to take any action against the petitioner on the basis of the aforementioned report prepared by the three membered committee as the same has been prepared malafidely without considering the relevant documents and relying on vague allegations.
(v) Issuance of a direction, order or writ, including a writ in the nature of mandamus directing the Respondent Authorities to show cause as to why the report of Circle Officer, Gaya was not considered while preparing the Joint Enquiry Report when the same was available on record.
(vi) Issuance of a direction, order or writ, including a writ in the nature of mandamus directing the Respondent Authorities to show cause as to why the statements of people who had past enmity with the petitioner were taken on record to weaken the case of the petitioner?
(vii) Issuance of a direction, order or writ, including a writ in the nature of mandamus directing the Respondent Authorities to show cause as to why the khatians and caste certificates of the relatives of the petitioner were not verified Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 4/86 which were essential piece of evidence.
(viii) Issuance of a direction, order or writ, including a writ in the nature of mandamus directing the Respondent Authorities to conduct a fresh enquiry with regard to the caste/social status of the petitioner considering all the documents on record and taking into account the statement of independent witnesses.
(ix) Any other relief/reliefs that the petitioner may be found to be entitled to in the facts and circumstances of the present case."
I.A. No. 01 of 2024
3. By way of aforesaid Interlocutory Application No. 01 of 2024, the petitioner wanted amendment in the prayer as well as for addition of reliefs sought for:
"to quash the memo number 8702 dated 03.06.2024 by which the Caste Scrutiny Committee of 'the Department' has held that the claim of the petitioner that he belongs to 'Dusadh' caste and as such, the respondent authorities may take further action in the light of the report.
the order passed by the Caste Scrutiny Committee does not consider any of the aforementioned grounds and they have Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 5/86 mechanically adopted the enquiry report when the petitioner had categorically prayed for a re- enquiry as the enquiry report which had been submitted was submitted based only on extraneous considerations."
I.A. No. 02 of 2024
4. Another Interlocutory Application vide No. 02 of 2024 has been filed by the petitioner for amending the prayer as well as the relief portion by adding the relief seeking:
quashing of the memo number 9725 dated 27.11.2023 (Annexure- 6) by which the Senior Superintendent of Police has constituted a three members team to submit an enquiry report before the Caste Scrutiny Committee as the same is in contravention of the judgment of the Hon'ble Apex Court in Kumari Madhuri Patil vs Addl. Commissioner reported in 1994 SCC (6) 241 and also Gazette Notification Number 3887 dated 19.10.2015 published by the Government of Bihar.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 6/86 (B). FACTS:
(i). CASE OF THE PETITIONER:
5. The petitioner contested the Municipal election and was elected as the Mayor of the Gaya Municipal Corporation (henceforth for short 'the Corporation') in the year 2022 which was reserved for the Scheduled Caste category. Earlier too, he was elected as the Mayor in the year 2017 and completed his five years period successfully.
6. However, after he got elected, a complaint was filed by the respondent no. 9, Shyamdeo Paswan before the State Election Commission, Bihar, Patna (henceforth for short 'the Commission') bearing case number 39 of 2023 praying for the declaration of election of Mayor of 'the Corporation' illegal and void as the petitioner has been elected on the basis of false declaration regarding his caste.
7. It is the case of the petitioner that the respondent no. 9, Shyamdeo Paswan had contested the election on the post of Mayor of 'the Corporation' against him and was defeated by a margin of 3800 votes. Further, no complaint was ever raised about his caste either during the nomination process and/or during election but came to be filed only after he was declared elected clearly showing vengeance on his part. Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 7/86
8. As per the complaint, the petitioner belonged to 'Bengali' caste as his ancestors were resident of Bengal. The case is/was that 'Bengali' caste has never been a part of the list of Scheduled Caste and as such the petitioner could not have contested the election on the reserved seat of Mayor of 'the Corporation'. The respondent no. 9 based his claim on a 'Bakshishnama' of the year 1971 which mentions the name of the grandfather of the petitioner as Hanuman Prasad Sarkar, caste-Bengali and resident of Bairagi, Gaya.
9. Upon notice, the petitioner appeared before 'the Commission' and filed his reply denying the allegation showing his lineage to explain that all his family members belonged to 'Dusadh' caste which comes under the Scheduled Caste category.
10. It was his further stand before 'the Commission' that earlier also, such frivolous petitions challenging his caste was/were raised in the year 2017 when one Bhanta Paswan (the brother of the one of the defeated candidate) raised similar objection. The Senior Superintendent of Police, Gaya thereafter submitted report after an enquiry and held that:
"(a) on examining the veracity of the caste certificate of the petitioner, it was Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 8/86 found that he belonged to "Paswan' caste;
(b) on a perusal of the Khatiyan of various plots of land held by the petitioner it was substantiated that the caste certificate was correct;
(c) the petitioner has been the resident of Gaya since at least last three generations and that the death certificate of his father also mentions his caste as Paswan;
(d) the complaint was being filed by the complainant one Bhanta Paswan due to political rivalry and there was no merit in the case."
11. The case is that one another person, Rakesh Paswan who was also a candidate to the post of Mayor and was defeated by the petitioner filed a complaint with regard to caste of the petitioner which was heard by the District Magistrate, Gaya on the direction of 'the Commission' after giving notice to both the parties and hearing them in detail. In this proceeding also, it was found that there was no evidence to dispute the fact that the petitioner belonged to Paswan caste and finally the complainant withdrew the complaint.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 9/86
12. The further case is that he and his family members have been residing in Bairagi, Gaya for a very long time and the report of the S.S.P., Gaya also confirms that. He has number of documents to support the case that he belongs to 'Dusadh' caste.
13. The claim is that only a 'Bakshishnama' of the year 1971 is being used against the petitioner showing the name of the grandfather of the petitioner as Hanuman Prasad Sarkar, caste Bengali, resident of Bairagi, Gaya. However, even the said document confirms that the petitioner's family has been residing in Gaya and the allegation that they are migrants from Bengal is not backed by any material evidence.
14. The contention is that Bengali is not a caste and "Sarkar' more than a surname was added as a connotation before the name of the persons who wielded some authority. Further, the 'Khatiyan' of the land in the name of his father clearly states his caste to be 'Dusadh'
15. It is further the case that there is absolutely no evidence to prove the fact that the petitioner was a resident of Bengal. Infact, he was born and brought up in the district of Gaya where his family is residing for the last three generations. Further, before Bihar was carved out of Bengal in the year 1912, it was normal for a resident of Gaya to be called Bengali but Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 10/86 that would not put him in the category of Bengali caste and it simply depicts native of a particular State.
16. It is the case of the petitioner that upon notice, he appeared and prayed for dismissal of the case of the complainant pending before it. 'The Commission' after hearing the concerned parties vide an order dated 06.10.2023 forwarded the matter to the Caste Scrutiny Committee (henceforth for short 'the Committee') under the General Administration Department, Bihar, Patna (henceforth for short 'the Department') for the determination of the caste of the petitioner.
17. The contention is that the casual manner in which the matter was referred to 'the Committee' reflects from the fact that 'the Commission' observed that the caste of Mrs. Tarannum should be confirmed within a period of three months.
18. Thereafter, as per the direction, the Committee requested the office of the Additional Director General (Weaker Sections) C.I.D., Patna which referred the matter to the Inspector General, Magadh Range, Gaya, who in turn directed the Sr.S.P., Gaya. Thereafter, vide memo number 9725 dated 27.11.2023, the office of the Senior Superintendent of Police, Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 11/86 Gaya constituted a three members team to submit an enquiry report before 'the Committee' with regard to the caste status of the petitioner.
19. Thereafter, the Dy.S.P. team of Gaya submitted its report to the Sr. S.P. Gaya who sent it to the I.G. (Magadh Range), Gaya. He, in turn, forwarded it to the office of the A.D.G. (Weaker Section) C.I.D., Patna from where vide office letter number 203 dated 07.03.2024, it forwarded to the Additional Secretary of 'the Department'.
20. According to the petitioner, it is a biased report inasmuch as:
(i) in course of enquiry, statement of 8 persons were recorded in order to ascertain the caste of the petitioner;
(a) the first person whose statement was recorded was one Indu Devi who is stated to be the paternal aunt of the petitioner. However, on 16.12.2023 (i.e. immediately after statement was recorded) she alongwith her son filed an informative petition before the Learned Chief Judicial Magistrate, Gaya stating that the police Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 12/86 coerced her to answer certain questions with the threatening to arrest her son if she fails to answer;
(b) the second person whose statement has been recorded is one Mathura Paswan who is stated to be the resident of Mohalla-
Murli Hill, Kotwali, Gaya. According to the petitioner, he is the father of one Aakash Paswan @ Bhanta Paswan who had contested the election to the post of Mayor against the petitioner in the year 2017 and was defeated. Moreover, he is not a resident of Murli Hill as has been claimed by him but a resident of Pasi (Ward-9). The veracity of his statement is therefore doubtful and as such cannot be relied upon;
(c) the third person whose statement has been recorded is one Ramu Ram who has stated that he is the resident of Bairagi, Gaya which is a false statement as the said person does not reside in Bairagi and there is no address proof to substantiate his Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 13/86 statement. He is a relative of Ramdip Paswan @ Ramdip Prasad who had contested the election against the elder brother of the petitioner (who was earlier a ward councillor) and had lost;
(d) the fourth person whose statement was recorded is one Rajendra Paswan who is the father of one Upendra Paswan who lost the present election to the post of Mayor. Therefore, his statement should also not have been considered by the committee;
(e) the fifth person is Ramdip Prasad who had contested and lost in the election to the post of ward councillor against the elder brother of the petitioner. The 'Dusadh' caste of his elder brother was never challenged by anyone which substantiates the fact that the aforementioned people have been giving statements against the petitioner only to harass and humiliate him;
(f) the other three persons namely Pramod Paswan, Rajendra Paswan and Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 14/86 Jitendra Paswan in their statements have supported the case of the petitioner and stated that he belongs to Paswan Caste.
(ii) further, the next part of the enquiry report deals into the academic records of the petitioner which was provided by Principal, Kisan Inter College, Korma, Gaya, Principal, Mahavir Middle School, Swarajpuri Road, Gaya as also the Principal of Kisan High School, Andharwari, Nawada. In all these documents, it has been mentioned that the petitioner belongs to Scheduled Caste category and is 'Dusadh' by Caste.
(iii) further, a report was also sought from the Circle Officer, Gaya and Block Dvelopment Officer, Gaya to enquire into the caste certificates issued to the other family members of the petitioner including his distant relatives as all of them possessed the caste certificate of 'Dusadh'. However, in a very casual manner, it was stated that no Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 15/86 records were available and as such the veracity of the caste certificate cannot be ascertained;
(iv) further, vide letter number 1983 dated 25.07.2023, the Circle Officer, Gaya submitted a report to Deputy Development Commissioner, Gaya after conducting an enquiry with regard to all the documents including the 'khatiyans' of the petitioner. In the said report it was categorically stated that the petitioner belongs to 'Dusadh' caste. The contention is that the said report has deliberately neither been mentioned in the present enquiry report nor any report from the Circle Officer with regard to the 'khatiyans' has been placed on record only to jeopardize the case of the petitioner.
(v) further case of the petitioner is that on a 'Bakshishnama' whereby a land had been transferred from the grandfather to the father of the petitioner wherein it has been mentioned that the grandfather of the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 16/86 petitioner (Hanuman Sarkar) belonged to Bengali caste and was a resident of Gaya. However, what has not been appreciated by the committee while preparing the same report is that the 'Khatiyan' prepared for the same land mentions the caste to be 'Dusadh'.
(vi) according to the petitioner, earlier also, an enquiry was conducted by the Office of the Senior Superintendent of Police wherein after considering the same facts, it came to the conclusion that the petitioner belonged to 'Dusadh' Caste;
(vii) further, the certified copy of the details of the land held by the great grandmother of the petitioner late Marwa Dokhtar Tikam wife of late Sashi Bhushan Prasad of the year 1914-15 expressly recorded that the caste of the great grandmother of the petitioner was 'Dusadh'. The cousins of the petitioner are still residing on the residential house constructed Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 17/86 on the said land.
21. Pursuant to the Joint Investigation Report forwarded to 'the Department', the notice vide no. 5255 dated 01.04.2024 was issued by 'the Department' seeking his response on the enquiry report.
22. The petitioner thereafter submitted his reply/show cause with all the supporting documents on 29.04.2024 but ignoring all the issues/points raised by him including the guidelines issued by the Hon'ble Apex Court/Patna High Court in Kumari Madhuri Patil/Rajni Kumari cases, 'the Department' in a most mechanical manner accepted the Dy.S.P. enquiry report to hold vide an order dated 03.06.2024 that the petitioner does not belong to 'Dusadh' Caste rather is a 'Bengali'.
23. Learned Senior counsel for the petitioner, Mr. Amit Shrivastava submits that the petitioner was born in the year 1984 and contested the Municipal election for the first time in the year 2017, i.e. 33 years thereafter. As such, it cannot be said that for political benefits, the entire extended family of the respondent would fabricate their documents to show that they belong to the 'Dusadh' caste. Further, the reservation of seat is on a rotational basis and as such, it could not have predicted in Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 18/86 any manner that the post of Mayor of 'the Corporation' would be reserved for the Scheduled Caste person prompting him to forge his caste since his birth.
24. The further submission is that the petitioner and his family have been residing in Bairagi, Gaya for a very long time, to be precise for the last three generations. Moreover, it is an admitted fact that prior to 1912, Bihar was part of undivided Bengal and as such merely because at once place, the word 'Bengali' has been recorded, that in no circumstances, can overturn all other proofs favouring his caste status.
25. He submits that there are unimpeachable documents to establish that all his family members belong to 'Dusadh' Caste and also hold caste certificates, 'Khatiyan' and solemnized marriage with the families belonging to the said caste.
26. Learned Senior Counsel submits that serious irregularities have been committed in the enquiry inasmuch as following the notification number 3887 dated 19.10.2015, the enquiry in cases of caste certificates have to be conducted by the Vigilance Cell of (Minorities) Cell, Crime Investigation Department, Bihar under the supervision of the Additional Director General of Police (Weaker Section). The same Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 19/86 process of investigation has also been laid down by the Hon'ble Apex Court in the Kumari Madhuri Patil and Another vs Additional Commissioner, Tribal Development and others reported in (1994) 6 SCC 241 case. However, in the instant case, the three members team of local police headed by the Deputy Superintendent of Police, Gaya (Town) was constituted to enquire into the case of the petitioner. This is in complete contravention of the established guidelines which was formulated to ensure that a free and fair investigation is carried out with respect to the caste status of an individual.
27. He submits that the instant case should not have further been adjudicated by 'the Commission' in the light of the judgment by a Full Bench of this Court in Rajani Kumari v. State Election Commission 2019 (4) PLJR 673 wherein it was held that 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' either suo moto or by any other person, it shall at first instance, enquire whether it is a purely election dispute and only when it is found that it is not a purely election dispute, 'the Commission' shall proceed to consider the same on the basis of unimpeachable materials. Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 20/86
28. Whenever a disputed question of fact and a contentious issue is brought before 'the Commission' as a ground and basis to render a candidate disqualified, it 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."
29. He submits that the instant case involves appreciation of lot of evidences both documentary as well as oral which could have been done only by a competent Court/Tribunal by filing an Election Petition but the same was not done in order to avoid the scrutiny of evidences.
30. According to him, the very foundation of the case of the complainant was 'a Bakshishnama' of the year 1971 which mentions the name of the grandfather of the Respondent as Hanuman Prasad Sarkar caste 'Bengali' and resident of Bairagi, Gaya. 'Bengali' is not a caste and the petitioner has given his lineage in details which would make it clear that he and his family members belonged to 'Dusadh' caste.
31. Further, 'the Khatiyan' of the land on which the petitioner resides mentions his caste to be 'Dusadh' and states Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 21/86 that they are resident of Bairagi, Gaya. The plot number in the aforementioned Khatiyan read as 6450 and the record of Gaya Municipal Survey Khesra 1914-15 appertaining to the same plot refers to one Buta Singh who was the owner of the said land.
32. So far as the claim of the respondent no. 9 before 'the Commission' about another 'Khatiyan' showing that Sashi Bhushan Sarkar was the father of Hanuman Sarkar and the great grandfather of the petitioner and he is as such Bengali by caste is/are forged land records produced during investigation by the Deputy Superintendent of Police to jeopardize the case of the petitioner. However, the same was not considered by 'the Committee' despite the fact that an independent enquiry into the same would irrevocably establish that the alleged 'Khatiyan' belongs to a land which was being used for running a hotel while the family members of the petitioner were residing on the land appertaining to the original 'Khatiyan'. The categorical stand is that neither the petitioner nor any of his family member has any concern with the said hotel or its owners.
33. The contention is that the reliance upon the said 'Khatiyan' of the 'Hotel Grand' has been made with malafide intention only to declare that the petitioner does not belong to 'Dusadh' caste. The petitioner is also in possession of the map of Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 22/86 Gaya which contains the details of the Wards from which it can be established that while the petitioner reside in Ward number 1 of the town, the alleged 'Khatiyan' land is situated in Ward Number 13. The said land in the revised 'Khatiyan' belongs to one Paras Nath Sarkar who in no way is related with the family of the petitioner. Also, the said land belongs to an area called Tinkonia, Chakdhibri which is in Ward 13 whereas the petitioner is a resident of Bairagi Hills, Ward 1, Gaya.
34. The case is that while the petitioner came forward with number of documents for determining his caste as 'Dusadh' with unlimited 'Khatiyans' right from the year 1914, the respondent number 9 has placed his case only on the basis of a 'Bakshishnama' which cannot be considered to be a sacrosanct document for determining a caste which was/were completely ignored by 'the Committee'.
35. Further, the resolution contained in memo no. 3887 dated 08.11.2007 issued by the General Administration Department, Bihar, Patna which came into existence following the judgment of the Hon'ble Apex Court in Kumari Madhuri Patil (supra) clearly states that the enquiry in cases of caste certificates shall be conducted by Vigilance Cell which shall comprise of (Minorities) Cell, Crime Investigation Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 23/86 Department and shall be done by Additional Director General of Police (Weaker Section), Crime Investigation Department, Bihar, Patna.
36. However, 'the Commission' failed to look into the allegation of the petitioner that a three members team of local police headed by the Deputy Superintendent of Police, Gaya (Town) was constituted to enquire into the case of the petitioner which is in complete contravention of the established norms as the guidelines were framed to ensure that a free and fair investigation is carried out with respect to the caste certificate of an individual.
37. The case of the petitioner as put forward by the learned Senior counsel is that he does not dispute the fact that the investigation into disputed caste certificate can be carried out by 'the Committee' but is instead aggrieved by the fact that the three- members Enquiry Committee which was constituted is not in consonance with the provision laid down in memo number 3887 dated 08.11.2007 and the judgment of the Hon'ble Apex Court in Kumari Madhuri Patil (supra) as also the subsequent memo no. 3887 dated 08.11.2007.
38. He submits that the rules of natural justice does not only prescribe that the opportunity of being heard should be Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 24/86 given to parties but as a necessary corollary, the averments made by the parties should be considered and recorded by the authorities while passing the order.
39. The submission is that in the instant case, while the opportunity to present his case was afforded to the petitioner, it is the non-consideration of the submissions in the orders passed by the respondent authorities that has forced him to file the instant petition praying for the indulgence of the Hon'ble Court in the light of the judgment of the Hon'ble Apex Court in Kumari Madhuri Patil (supra) which reads as follows:
'the order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.'
40. Learned Senior Counsel sums up the case with following points:
"(i) earlier also, frivolous petitions challenging the caste of the petitioner were filed before various forums. The petitioner had contested the municipal election for the first time in the year 2017 when one Bhanta Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 25/86 Paswan who was the brother of the defeated candidate also raised similar objection with regard to his caste and filed a complaint before the Akhil Bhartiya Dusadh Uthan Parishad. The same was examined by the Deputy Superintendent of Police, Gaya Town and a report was submitted to the Senior Superintendent of Police confirming the following points after an enquiry:
(a) on examining the veracity of the caste certificate of the petitioner, it was found that he belonged to "Paswan' caste;
(b) on a perusal of the 'Khatiyan' of various plots of land held by the petitioner, it was substantiated that the caste certificate was correct;
(c) the petitioner has been the resident of Gaya since atleast last three generations and that the death certificate of his father also mentions his caste as 'Paswan';
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 26/86
(d) the complaint has been filed by the complainant one Bhanta Paswan due to political rivalry and there was no merit in the case;
(ii) one Rakesh Paswan who also was a candidate to the post of Mayor and was defeated by the petitioner earlier filed a complaint with regard to caste of the petitioner which was heard by the District Magistrate, Gaya on the direction of the State Election Commission, Patna by letter dated 30.09.2019 after giving notice to both the parties and hearing them in detail. In this proceeding also, it was found that there was no evidence to dispute the fact that the petitioner belonged to 'Paswan' caste and finally the complainant withdrew his case against the petitioner;
(iii) the entire case is based on a 'Bakshishnama' of the year 1971 whereby a land had been transferred from the grandfather of the petitioner to the father of Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 27/86 the petitioner wherein it has been mentioned that the grandfather of the petitioner (Hanuman Sarkar) belonged to Bengali caste and was a resident of Gaya. However, what has not been appreciated at all by the Committee while preparing the said report dated 03.06.2024 is that the 'Khatiyan' prepared for the same land mentions the caste to be 'Dusadh'.
(iv) the certified copy of the details of the land held by the great grandmother of the petitioner, Late Marwa Dokhtar Tikam, wife of late Sashi Bhushan Prasad, belonging to the year 1914-15 expressly stated that the caste of the great grandmother of the petitioner was 'Dusadh'. The cousins of the petitioner are still residing in the residential house constructed on the said land.
(v) the petitioner has exhibited the records to show as to how forged land records were produced during investigation Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 28/86 by the Deputy Superintendent of Police to jeopardize his case. However, the same was not considered despite the fact that an independent enquiry into the same would irrevocably establish that the alleged 'khatiyan' belongs to a land which was being used for running a hotel while the family members of the petitioner were residing on the land appertaining to the original 'khatiyan' with which neither the petitioner nor any of his family members have any concern. The reliance upon the said khatiyan of the Hotel Grand has been made with malafide intention and ulterior motives only to somehow declare that the petitioner does not belong to 'Dusadh' caste. The petitioner is also in possession of the map of Gaya which contains the details of the wards from which it can be established that while he alongwith the family reside in Ward number 1 of Gaya, the alleged 'khatiyan' which has been manipulated and submitted by the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 29/86 complainant is situated in Ward Number 13 and the petitioner has no concern with the said land;
(vi) 'the Committee' ignored the final 'khatiyan' which is part of the archives of the State Government;
(vii) 'the Committee' further failed to appreciate that while deciding matter of such vital importance, the statement of uninterested people with standing in society has to be considered. However, in the present case, the evidence of interested persons who were defeated in election by the petitioner were recorded;
(viii) moreover, the statements of one Ramu Ram and Ramdip Prasad were recorded which were based on forged 'Aadhar Cards' and have been accepted by them by way of an affidavit. The same was pointed out to 'the Committee' alongwith proofs but was not considered. The recording of statement of people who were not local Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 30/86 residents of the area by using forged 'Aadhar cards' which raises serious doubts about the way the enquiry was conducted;"
41. Learned Senior counsel thus submits that the impugned order passed by 'the Department' dated 03.06.2024 failed to consider the aforementioned grounds and they have mechanically adopted the enquiry report when the petitioner had categorically prayed for a re-enquiry claiming that it is based on extraneous considerations. He concludes by submitting that in the aforesaid facts and the circumstances, the writ petition be allowed.
(ii). CASE OF THE RESPONDENT NO. 9
42. The case of the respondent no. 9 as presented by Mr. Pushkar Narayan Shahi, learned Senior Counsel is that the petitioner, Birendra Kumar @ Ganesh Paswan filed his nomination paper for the post of Mayor of 'the Corporation' showing himself to be a Scheduled Caste candidate belonging to 'Dusadh' caste and was subsequently elected to the said post.
43. According to him, the petitioner is actually 'Bengali' caste residing in Gaya. The original name of the father of petitioner is Bala Sarkar, while that of his grandfather Hanuman Prasad Sarkar, son of Shashibhushan Sarkar. Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 31/86
44. The case of the respondent no. 9 is that the grandfather of the petitioner, Hanuman Prasad Sarkar executed a 'Bakshishnama' in favour of the father of the petitioner (who was minor at that time) mentioning his caste as 'Bengali'. As the petitioner still resides in the same house/plot, it is clear that he belongs to Bengali caste and is not 'Dusadh'.
45. That apart, a large number of his relatives are also residing in the township of Gaya but none of them are member of Schedule Caste community or 'Dusadh' by caste. They are still known as Bengali. The great grandfather of the petitioner, Shashi Bhushan Sarkar @ Sasi Bhushan Sarkar was 'Bengali' as per the survey of the year 1914 as also 1981 but very surprisingly, the caste of his father, Bala Sarkar has been mentioned as 'Dusadh' in the year 1981.
46. Further, the State government issued a notification bearing no. 05/2010 dated 09.03.2011 wherein clause 9.1 holds that the 'Khatiyan' or revenue records regarding lands will be a relevant document for the proof of caste certificate while clause 15 incorporates that the caste of a person will be determined from the caste of his father.
47. He alleges that on the basis of caste certificate issued by Revenue Officer, Gaya on 01.09.2022 showing the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 32/86 petitioner as member of Schedule Caste, he contested the election of Mayor of 'the Corporation' in the year 2022 and was declared elected. The respondent no. 9 having knowledge that the petitioner do not belong to Schedule Caste rather is Bengali caste filed a petition before 'the Commission' praying therein to declare his election as Mayor of 'the Corporation' as illegal and void.
48. The petitioner appeared and filed his reply and after hearing the parties, 'the Commission' passed an order on 06.10.2023 referring the matter to 'the Committee' of 'the Department' for verifying/to determine the caste of the petitioner in accordance with the guidelines given in memo no 3887 dated 08.11.2007 as also the decision passed in Rajani Kumari (supra) and Baidnath Singh vs. The State of Bihar and Others (CWJC No. 19084 of 2021).
49. According to the learned Senior Counsel, Mr. Shahi, once the complaint was made by the respondent no. 9 before 'the Commission' in the light of the aforesaid gazette notification, since 'the Committee' has been specially constituted and as it was a caste related complaint, 'the Commission' was fully justified in referring the matter to it. He submits that the contention of the learned Senior counsel for the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 33/86 petitioner that 'the Commission' was duty bound to record the satisfaction whether it is a election dispute or a caste related dispute has to be rejected as the respondent no. 9 was challenging the caste status of the petitioner. It is his further submission that following Rajni Kumari (supra) case, 'the Committee' being fact finding Tribunal, 'the Commission' was absolutely justified in referring the matter to 'the Committee'. Again, pursuant to the resolution of the State Government, the office of the A.D.G. (Weaker Sections) C.I.D., Patna was assigned the job, 'the Committee' too was justified in referring it to 'the C.I.D.'
50. It is his submission that finally, the office of the Senior Superintendent of Police, Gaya constituted a team of the Dy.S.P. consisting of an Inspector as also the Sub-Inspector. He submits that subsequently, altogether eight persons were examined/statements recorded which included the own paternal aunt of the petitioner, Indu Devi who informed that they belong to 'Bengali' caste (Lala). He submits that the 'Bakshishnama' that was executed by Hanuman Prasad, the grandfather of the petitioner vide document no. 6187 dated 21.04.1971 in favour of the father of the petitioner clearly incorporated his caste as 'Bengali'. Learned Senior counsel reiterates that the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 34/86 'Bakshishnama' do not record the word community rather it has recorded Bengali caste.
51. He submits that so far as the claim of the petitioner that the 'Khatian' pursuant to the same 'Bakshishnama' records the caste as 'Dusadh' has to be rejected in view of the fact that it was a draft 'Khatian' and not a final one.
52. Learned Senior counsel submits that it was in the aforesaid background that the enquiry committee came to the conclusion that the petitioner is not a 'Dusadh' rather 'Bengali'. It is his submission that though the petitioner has come in this world in 1984, the fact remains that till 1981, they were known as 'Bengali' and only thereafter, the first document comes in which the father of the petitioner has recorded himself to be 'Dusadh' and not 'Bengali.'
53. Learned Senior Counsel submits that thereafter the matter was taken up by 'the Committee'. The petitioner was granted opportunity and a perusal of the order would show that 'the Committee' has recorded that the petitioner failed to provide any satisfactory answer on the 1981 'Bakshishnama' as to how his caste has been incorporated as 'Bengali' and not 'Dusadh'. The committee also recorded that in the year 1914- Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 35/86 1915, the Municipal Corporation Khatian (no. 30) has recorded Shashi Bhushan Sarkar who is father of Hanuman Sarkar and great grandfather of the petitioner as Bengali.
54. Learned Senior counsel submits that earlier the District Magistrate, Gaya on 31.12.2020 had dropped the proceeding on technical ground and not on merit and as such, the same has no value. He submits that even otherwise, after the constitution of the Caste Scrutiny Committee, the District Magistrate, Gaya had no role to play in deciding the caste status of the petitioner.
55. The learned Senior Counsel sums up the case as follows:
i) from the gift deed of 1971, it is clear that the caste of the petitioner is Bengali and not the 'Dusadh;
ii) further, the order dated 31.12.2020 passed by the District Collector, Gaya has no relevance as the case of the said Rakesh Kumar was dismissed on technical ground and not on the merit. Moreover the case of the petitioner was never relegated to the Caste Scrutiny Committee earlier for Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 36/86 verification/ determination of his caste earlier and hence those facts are not relevant in the present case;
iii). a perusal of registered deed dated 21.04.1971, it is apparent that the grandfather of the petitioner namely, Hanuman Sarkar belongs to 'Bangali caste' and the name of his son is/was Bala Sarkar;
iv) there is no document prior to 1980 to show that he or his fore fathers were 'Dusadh' but very surprisingly, he became "Dusadh" Caste after 1980 and thus all the subsequent documents and certificates which shows him as 'Dusadh' have been illegally procured;
v). the Election Commissioner rightly vide a reasoned order on 06.10.2023 relegated the case to the Caste Scrutiny Committee for determination of the Caste of the petitioner;
vi) the enquiry committee approached all the relevant persons for correct Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 37/86 determination of the caste of the petitioner and thereafter submitted its Joint investigation report to the General Administration Department. The report of the Circle Officer dated 25.07.2023 has been submitted by him only on the basis of the documents of recent years i.e. after the year 1986 and as such, it has no relevancy in the present case;
vii) so far as the claim of grandmother being recorded as 'Dusadh' caste is concerned, the said Khatiyan number is 6498 and name of the occupant has been mentioned as Masomat Marwa D/o Tikan belonging to 'Dusadh' caste but another 'Khatiyan' in the writ petition shows the occupant as Basu Prasad and Rajendra Prasad with plot nos. 153/6500 and 154/6488 and as such the Khatiyan of Most. Marwa Devi in no way is related with the 'Khatiyan' of the Baso Prasad and Rajendra Prasad;
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 38/86
vii) from the perusal of the Gaya Municipal Survey Khesra 1914-1915, it will be evident that plot no. 6500 is a 'Gairmajura Malik' land and plot no. 6488 is recorded in the name of one Aklu Bhuiyan S/o Budhan, caste Bhuiyan and as such it is apparent that the above said plots no. 6498, 6488 and 6500 does not belong to the petitioner and/or his family member."
56. Learned Senior counsel concludes by submitting that there are unimpeachable evidences which led 'the Committee' to come to the decision which needs no interference and the writ petition is fit to be dismissed.
(iii) STATE RESPONSE:
57. Mr. Manish Kumar, learned G.P. 4 represents the State. As per the stand of the State-respondents, in Case No.39/2023 (Shyamdeo Paswan Versus Birendra Kumar @ Ganesh Paswan) vide letter no. 3521 dated 06.10.2023, 'the Commission' requested 'the Department' to enquire into the matter of the caste of the petitioner by 'the Committee' constituted for the purpose in the light of memo No.3887 dated 08.11.2007.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 39/86
58. Pursuant thereto, 'the Department' vide its letter No.20170 dated 31.10.2023 requested the Additional Director General of Police, Weaker Section, Crime Investigation Department, Government of Bihar (henceforth for short 'the CID) to enquire into the caste of the petitioner and send report immediately in this regard.
59. Thereafter, the Additional Superintendent of Police, Weaker Section, 'the CID' vide its letter no.203 dated 07.03.2024 made available their report regarding caste of the petitioner, Sri Birendra Kumar @ Ganesh Paswan.
60. From perusal of the aforesaid report, it clearly appears that the forefathers of the petitioner were found recorded as the caste "Bengali" and in that circumstances, the claim of the petitioner to be "Dusadh" cannot be entertained.
61. On receipt of the aforesaid report submitted by 'the CID', 'the Department' vide its letter no. 5255 dated 01.04.2024 directed the petitioner to submit his response which followed the reminder vide office letter No. 6317 dated 22.04.2024.
62. The petitioner submitted his written statement on 29.04.2024 which was placed before 'the Committee' in its meeting dated 21.05.2024 and after going through all the facts Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 40/86 as also evidences, it unanimously came to the conclusion that the petitioner, Birendra Kumar @ Ganesh Paswan, son of Shri Ballu @ Bala Sarkar, Janta Colony, Bairagi, Near Devi Asthan, Police Station Delha, District Gaya claim to be a caste by "Dusadh" (Scheduled Caste) cannot be accepted. As such the same was rejected and the said decision communicated to all concerned including the petitioner vide letter/memo No.8702 dated 03.06.2024.
63. The submission of the learned State Counsel is that the Hon'ble Supreme Court in Kumari Madhuri Patil (supra) issued direction whereby all State Governments were directed to constitute a committee of three members namely:
(i) an Additional or Joint Secretary or any Officer higher in rank of the Director of the Department concerned;
(ii) the Director, Social Welfare/ Tribal Welfare/ Backward Classes Welfare, as the case may be, and
(iii) in the case of Scheduled Castes, an Officer who has ultimate knowledge in the verification and issuance of the Social status certificates.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 41/86
64. Further, in case of any complaint/dispute in respect of caste certificate, the verification was required to be done by 'the Committee'.
65. Accordingly, the State Govt. issued a circular bearing no. 3887 dated 08.11.2007 as also circular no. 1567 dated 05.02.2014 finally issued a notification bearing no. 3887 dated 19.10.2015 by which a decision was taken to constitute three members committee for determination/ verifying the caste of a person.
66. Further, the State Govt. has already constituted a Directorate/ Committee as per the directives of the Hon'ble Supreme Court in the above mentioned case of Kumari Madhuri Patil (supra) as will be apparent from the subsequent order passed in Baijnath Singh (supra).
67. Learned State Counsel reiterates that:
i) once 'the Commission' sent the matter to 'the Committee' on 06.10.2023; on 31.10.2023, 'the CID' upon request of 'the Committee' sent communication to the I.G., Magadh Range, Gaya on 14.11.2023 to constitute a three members committee to enquire into the verification/determination of Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 42/86 caste of the petitioner under the supervision of one Deputy superintendent of Police rank officer.
ii) thereafter, the Inspector General of Police, Magadh Range, Gaya vide memo no. 1757 dated 24.11.2023 sent a letter to the Senior Superintendent of Police, Gaya directing him to get the abovesaid matter enquired into;
iii) this followed the Constitution of the three members committee consisting of a Deputy Superintendent of Police, Gaya, Inspector of Police-Cum-Officer in charge, Delha Police and Sub Inspector of Police, Delha Police Gaya by the office of Sr.S.P., Gaya vide memo no. 9725 dated 27.11.2023 (Annexure 6 of Main Writ Application.)
(iv) the matter was enquired into by the three members committee and the enquiry report was submitted before the Senior Superintendent of Police, Gaya, on 30.01.2024.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 43/86
(v) thereafter, vide letter no. 1042 dated 21.02.2024 it was submitted before the Inspector General of Police, Magadh Range, Gaya, who forwarded it to the Police Head Quarter, Crime Investigation Department, Bihar Patna on 22.02.2024.
(vi) the (Crime Investigation Department (Weaker Section) thereafter vide office letter no. 203 dated 07.03.2024 sent the same to 'the Department' according to approval to the enquiry report.
(vii) it was submitted before 'the Committee' and thereafter in pursuance of the provision contained in sub clause A of clause 3 of the notification dated 19.10.2015, 'the Committee' gave a notice to the petitioner by letter dated 01.04.2024 asking him to submit his explanation within 15 days so that the appropriate decision may be taken.
(viii) the petitioner thereafter
appeared before 'the Committee' and
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 44/86 submitted his detailed explanation and after considering all the facts and documents submitted by him, passed the final order on 03.06.2024 by which the claim of the petitioner of belonging to 'Dusadh' Caste was rejected. (Annexure 13 of the I.A. No. 01 of 2024).
(ix). the stand is that the petitioner belong to caste 'Bangali' and not 'Dusadh' as will be evident from the gift deed dated 21.04.1971 where the caste name of the father of the petitioner is clearly mentioned as 'Bangali'.
(x). the writ petition is accordingly fit to be dismissed.
(iv). STAND OF STATE ELECTION
COMMISSION, BIHAR
68. Mr. Ravi Ranjan, learned counsel for 'the Commission' submits that whether the State Election Commission can entertain such petition or not has already been settled in the Rajni Kumari (supra).
69. According to him:
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 45/86
(i) a complaint was preferred by Respondent no.9 before the answering respondent Commission whereafter, a case being Case no. 39 of 2023 came to be registered;
(ii) the jurisdiction of State Election Commission came up for discussion before Full Bench of this Hon'ble Court in case of Rajni Kumari (supra), wherein the Hon'ble Full Bench was pleased to hold that it has the jurisdiction to entertain both pre and post disqualification matter as also qualification matter;
(iii) the Full Bench further laid down that if a disputed question of facts and a contentious issue is brought before 'the Commission' as ground and basis to render a candidate disqualified, it would be required to relegate the parties to competent Court/Tribunal or a fact-finding body competent to decide such issues after taking evidences;
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 46/86
(iv) in the light of judgment passed in case of Kumari Madhuri Patil (supra), a direction was given by Hon'ble Apex Court regarding verification of caste certificates through Caste Scrutiny Committee;
(v) in the light of judgment of Kumari Madhuri Patil (supra), a Caste Scrutiny Committee as also a/Directorate for verification of caste of a person belonging to Schedule Caste & Schedule Tribe was constituted vide resolution contained in memo no. 3887 dated 08-11-2007;
(vi) further, a Division Bench of the Patna High Court in case of Baidhnath Singh (supra) reiterated that the caste status of a person can only be verified by Caste Scrutiny Committee.
(vii) thus when any issue pertaining to caste status of a person is/was raised before 'the Commission', the same was referred to Caste Scrutiny Committee which is fact finding body;
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 47/86
(viii) further, when such finding of the Caste Scrutiny Committee reaches 'the Commission', opportunity is being given to concerned parties in tune with principles of natural justice before any order is passed.
(ix) when the report/finding of the Caste Scrutiny Committee dated 03-06-2024 reached 'the Commission', a date of hearing in said case no. 39/2023 was fixed on 18-06- 2024;
(x) the same is presently pending before 'the Commission'.
70. Learned counsel submits that as such, 'the Commission' was not only justified in taking up the matter, as 'the Committee' has been constituted to look into the Caste status of a person, it was again justified in referring the matter to 'the Committee'.
71. He submits that however once 'the Commission received the communication dated 03.06.2024 from the Committee, on the objection submitted by the petitioner, as an abundant caution, it sought a report from the District Magistrate, Gaya and the matter is presently before 'the Commission'. Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 48/86
72. He concludes his argument by submitting that the State Election Commission was:
(i). fully justified in entertaining the petition where the Caste of the petitioner was questioned,
(ii). further, as the Caste Scrutiny Committee has been constituted for the purpose, again it was fully justified in recommending the same to it;
(iii) now that it has received a report, shall act in accordance with law and after hearing all the parties/objections so raised as also the reports submitted.
(e) FINDINGS:
73. This Court has heard the learned Senior Counsels for the petitioner as also the respondent no. 9 beside the learned State Counsel and learned Counsel for the State Election Commission.
74. This Court is further conscious of the fact that under Article 226 of the Constitution of India, it cannot be decided in the Court whether the petitioner is a 'Dusadh' or 'Bengali' but only has to determine whether the procedure Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 49/86 adopted to arrive at a decision is in line with the decision rendered by the Hon'ble Apex Court in the Kumari Madhuri Patil (supra) case as also the guidelines/resolution dated 08.11.2007 issued by the State Government or not.
(i) ISSUES:
75. The issues which need consideration is/are:
(i) whether 'the Commission' is/was justified in taking up the complaint of the respondent no. 9 and referring it to 'the Committee';
(ii) whether 'the Committee' in turn could have referred the matter to Additional Director General (Weaker Section), Crime Investigation Department, Bihar, Patna (henceforth for short 'the C.I.D.');
(iii) whether 'the C.I.D' was duty bound to conduct an enquiry by itself as per the guidelines/resolution or was justified in referring the matter to the office of the Inspector General of Police (Magadh Range), Gaya;
(iv) whether upon receipt of the Dy.S.P. Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 50/86 report from the office of the I.G., (Magadh Range), Gaya, 'the CID' applied its independent mind before referring it to 'the Committee';
(v) whether in the absence of 'the C.I.D.' enquiring the matter by itself through the Directorate and/or making any comment on the findings so received showing its satisfaction, the report stands does not vitiated;
(vi) whether 'the Committee' recorded its satisfaction with the enquiry report submitted by 'the C.I.D.' holding that the same has been conducted in accordance with law before deciding the Caste status of the petitioner;
(vii) whether in the aforesaid facts and circumstances, any interference is required.
76. The facts have been repeatedly submitted and can be incorporated in one paragraph:
(i) 'the Commission' on receipt of the complaint of the respondent no. 9 referred Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 51/86 the matter to 'the Committee' on 06.10.2023 in the light of its constitution by the State Government for the consideration of the Caste Status of an individual;
(ii) 'the Committee' thereafter vide letter no. 20170 dated 30.10.2023 referred the matter to 'the C.I.D.';
(iii) 'the C.I.D.' thereafter sent the request to the office of I.G. (Magadh Range), Gaya with request to enquire into the Caste status of the petitioner vide letter no. 1747 dated 14.11.2023;
(iv) the I.G. Magadh Range, Gaya in turn sent the request to the Senior Superintendent of Police, Gaya vide office letter no. 1732 dated 21.11.2023 and 1757 dated 24.11.2023;
(v) the Sr.S.P., Gaya thereafter constituted the committee to be headed by the Dy.S.P. and comprising the Inspector and Sub Inspector of the district;
(vi) once the enquiry was conducted, Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 52/86 the office of the Additional Superintendent of Police, Town, Gaya vide office letter no.
289 dated 30.01.2024 provided the enquiry report to the office of the Sr.S.P., Gaya;
(vii) the Sr. S.P., Gaya thereafter vide letter no. 1692 dated 21.02.2024 sent the enquiry report to the office of the I.G., Magadh Range, Gaya;
(viii) the I.G. (Magadh range), Gaya again vide office letter no. 314 dated 22.02.2024 sent the report to 'the C.I.D.';
(ix) 'the C.I.D.' thereafter sent it to 'the Committee' vide letter no. 203 dated 07.03.2024;
(x) 'the Committee' thereafter put the parties on notice and finally vide order dated 03.06.2024 held that the Caste of the petitioner is 'Bengali' and not 'Dusadh' and sent the order/decision to 'the Commission';
(xi) the case no. 39/2023 (Shyamadeo Paswan vs. Birendra Kumari @ Ganesh Paswan) is presently pending before 'the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 53/86 Commission.'
77. Further, in Kumari Madhuri Patil (supra) case, the Hon'ble Apex Court in paragraphs 12 to 15 held as follows:
12. We have seen that Scrutiny Committee proceedings although started on 8-12-1989 were prolonged till 26-6-1992. We do not have record to scan the reasons for the delay. It would appear that the constitution of a Committee with large number of members and Secretary as Chairman must have greatly contributed for the delay in deciding the claims for the social status. A right of appeal provided thereafter compounded further delay though the Additional Commissioner on the facts of this case has disposed of the appeal very expeditiously. However, all of them are the contributory factors for the delay.
13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 54/86 has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor.
It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 55/86 the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-
castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 56/86 caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 57/86 Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which 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 parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, 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 pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 58/86 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 etc. (bold/underline by this Court)
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed.
The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 59/86 candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis- a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 60/86 candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day- to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 61/86 conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
(underline by this Court) Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 62/86
12. No suit or other proceedings before any other authority should lie.
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.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 63/86 by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.
14. Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 64/86 it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons.
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 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 Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 65/86 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."
(underline by this Court)
78. In the light of the decision of the Hon'ble Apex Court in Kumari Madhuri Patil (supra) case, the resolution dated 08.11.2007 was issued by the Personal and Administrative Reforms Department (now known as the General Administration Department) Bihar, Patna vide gazette notification dated 19.10.2015 which read as follows:
fcgkj xTkV vlk/kkj.k vad fcgkj ljdkj }kjk izdkf"kr 27 vf"ou 1937 ¼"k0½ ¼la0 iVuk 1226½ iVuk] lkseokj] 19 vDVqcj 2015 la0 11@vk04&tk0tk0iz0&01@2003&dk0&3887 dkfeZd ,oa iz"kklfud lq/kkj foHkkx ladYi 8 uoEcj 2007 fo'k;%& ekuuh; mPpre U;k;ky; }kjk flfoy vihy la0&5854@94 dqekjh ek/kqjh ,oa vU; cuke vij vk;qDr] tutkfr ¼vkfnoklh½ fodkl ,oa vU; esa ikfjr U;k; fu.kZ; ds vkyksd esa vuqlwfpr tkfr ,oa vuqlwfpr tutkfr ds izek.k i=ksa dh tkap gsrq funs"kky; ds xBu ds laca/k esaA Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 66/86 funs"kkuqlkj mi;qZDr fo'k; ds laca/k esa dguk gS fd ekuuh; mPpre U;k;ky; }kjk flfoy vihy la0 5854@94&¼,jkbftax vkmV vkWQ ,l0,y0ih0½ ¼lh½&14467@93 dqekjh ek/kqjh ikfVy ,oa vU; cuke vij vk;qDr] tutkfr ¼vkfnoklh½ fodkl ,oa vU; esa ljdkjh lsokvksa esa fu;qDr vFkok fofHkUu "kS{kf.kd laLFkkvksa ¼;Fkk rduhdh] xSj rduhdh] lkekU;
O;kolkf;d vkfn½ esa ukekadu vkfn ds dze esa vuqlwfpr tkfr@vuqlwfpr tutkfr ds tkfr izek.k i=ksa dh tkap gsrq ,d funs"kky; ds xBu dk funs"k fn;k x;k gSA 2- vr% jkT; ljdkj us Hkfy&HkkWafr fopkj djus ds mijkar ;g fu.kZ; fy;k x;k gS fd ekuuh; mPpre U;k;ky; }kjk ikfjr mDr U;k; fu.kZ; ds vkyksd esa vkj{k.k vk;qDr lg&iz"kklfud lq/kkj vk;qDr@izHkkjh lfpo] dkfeZd ,oa iz"kklfud lq/kkj foHkkx ds fu;a=.kk/khu jkT; Lrj ij vuqlwfpr tkfr@vuqlwfpr tutkfr ds tkfr izek.k i=ksa dh tkap gsrq ,d funs"kky; dk xBu fd;k tk;] ftldk Lo:i fuEuor gksxk%&
(i) lkekU; lfefr
(ii) fuxjkuh lfefr
(iii) lkekU; lfefr dk xBu fuEukafdr :i ls fd;k x;k gS%& ¼d½ vkj{k.k vk;qDr lg&iz"kklfud lq/kkj vk;qDr@izHkkjh lfpo] &v/;{k dkfeZd ,oa iz"kklfud lq/kkj foHkkx ¼[k½ funs"kd@la;qDr lfpo] vuqlwfpr tkfr ,oa tutkfr dY;k.k &lnL;
foHkkxA ¼x½ vuqlwfpr tkfr@vuqlwfpr tutkfr dk ,d voj &lnL;
lfpo@mi&lfpo] ftls lacaf/kr tkfr izek.k&i= dk lR;kiu] tutkrh; leqnk; ds lkekftd fLFkfr vkfn dh fo"ks'k tkudkjh gks] tks vkj{k.k vk;qDr lg&iz"kklfud lq/kkj vk;qDr@izHkkjh] lfpo] dkfeZd ,oa iz"kklfud lq/kkj foHkkx }kjk euksfur gksxkA bl lfefr dks lg;ksx gsrq vko";drkuqlkj dkfeZd ,oa iz"kklfud lq/kkj Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 67/86 foHkkx ds v/khu dk;Zjr inkf/kdkjh@deZpkjh ls dk;Z fy;k tk ldsxkA ,rn laca/kh lHkh izdkj ds i=kpkj vkfn laca/kh dk;Z vkj{k.k izHkkjh] voj lfpo@mi lfpo }kjk vkj{k.k vk;qDr &lg& iz"kklfud lq/kkj vk;qDr@izHkkjh lfpo] dkfeZd ,oa iz"kklfud lq/kkj foHkkx ds funs"kkuqlkj fu'ikfnr fd;s tk;saxsA
(ii) fuxjkuh dks'kkax dk xBu fuEukafdr :i ls fd;k tkrk gS%& jkT;k/khu tkyh tkfr izek.k i= laca/kh tkap vkfn dk;Z vuqlwfpr tkfr@vuqlwfpr tutkfr ¼vYila[;d½ dks'kkax] vijk/k vuqla/kku foHkkx] fcgkj] iVuk }kjk fu'ikfnr fd;k tkrk gSA vr% fuxjkuh dks'kkax dk dk;Z vij iqfyl egkfuns"kd ¼detksj oxZ½] vijk/k vuqla/kku foHkkx }kjk fu'ikfnr fd;k tk;sxkA 3- lkekU; lfefr }kjk dk;Z fu'iknu dh izfdz;k%& tkyh tkfr izek.k i= laca/kh f"kdk;r izkIr gksus ij vkj{k.k vk;qDr lg& iz"kklfud lq/kkj vk;qDr@izHkkjh lfpo] dkfeZd ,oa iz"kklfud lq/kkj foHkkx }kjk bldh tkap vuqlwfpr tkfr@tutkfr ¼vYila[;d½ dks'kakx] vijk/k vuqla/kku foHkkx }kjk djk;h tk;sxhA vijk/k vuqla/kku foHkkx ls izkIr fjiksVZ ij lkekU; lfefr }kjk fuEu izfdz;k viukrs gq, visf{kr dkjZokbZ dh tk;sxh%& d½ 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 ,sls vkosnd dks lrdZrk vf/kdkjh dh fjiksVZ dh izfr ds lkFk iathd`r Mkd ls 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 crkvksa lwpuk i= izkfIr ds 15 fnuksa ds Hkhrj vkj{k.k izHkkjh] voj lfpo@mi lfpo] dkfeZd ,oa iz"kklfud lq/kkj foHkkx dks izLrqr djsa vkSj fdlh Hkh ifjfLFkfr esa vH;kosnu vFkok mRrj 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 Ik"pkr lfefr dh cSBd vkj{k.k izHkkjh voj lfpo@mi lfpo cqyk;saxs vkSj vkj{k.k vk;qDr&lg&iz"kklfud lq/kkj vk;qDr@izHkkjh lfpo] dkfeZd ,oa iz"kklfud lq/kkj foHkkx ,slh lfefr ds v/;{k ds :i esa vkosnd dks lquokbZ ,oa lk{; izLrqr djus dk iw.kZ volj nsaxsA vkosnd dks ,slk volj nsus Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 68/86 ds ckn Hkh vkosnd dks mlds vfHkHkkod ds ek/;e ls ;k vU; volj nsus ds ckn lfefr ,slh tkap 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 tgka lrdZrk vf/kdkjh dh fjiksVZ ¼izek.k i= /kkjd½ ds i{k esa gks lfefr dks fdlh dk;Zokgh dh vko";drk ugha gksxhA ¼x½ lfefr }kjk tkap 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 tkap 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 vuqlwfpr tkfr@tutkfr ds xyr tkfr izek.k i= ds vk/kkj ij ykHk izkIr fd;s gSa] tks blds ik= ugha gS] oSls ykHkkFkhZ ds fo:) vijkf/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 4- fuxjkuh dks'kkax }kjk dk;Z fu'iknu dh izfdz;k%& fuxjkuh dks'kkax }kjk fdlh O;fDr fo"ks'k ds fo:) izkIr f"kdk;r dh tkap ds dze esa mlds iSr`d fuokl@fj"rs&ukrsnkj @Ldwy dkWyst esa miyC/k vfHkys[k@Hkw&jkTkLo laca/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 tkap izfrosnu ds ,d ekg ds vUnj lkekU; lfefr dks fuf"pr :i ls lkSaik tk;sxkA 5- fu;qfDr inkf/kdkjh }kjk lkekU; ifjfLFkfr;ksa esa fu;qfDr ds dze 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 6- ;g vkns"k rkRdkfyd izHkko ls ykxw gksxkA ,rn~ laca/kh iwoZ fuxZr vkns"k@ladYi vkfn ds vlaxr va"k la"kksf/kr le>s tk;saxsA vkns"k%& vr% ;g vkns"k gS fd loZ lk/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 Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 69/86 vk;ksx@ fiNMss+ oxksZa ds fy, jkT; vk;ksx@vfr fiNMs+ oxksZa ds fy, jkT; vk;ksx@lHkh foHkkxk/;{k@lHkh ize.Myh; vk;qDr@lHkh ftyk inkf/kdkjh@eq[; ea=h lfpoky;@fcgkj fo/kku lHkk@fcgkj fo/kkj ifj'kn dks lwpuk ,oa vko";d dkjZokbZ ds fy, Hksth tk;A fcgkj&jkT;iky ds vkns"k ls] lj;qx izlkn] ljdkj ds mi&lfpoA (bold by this Court)
79. Further, the Full Bench of the Patna High Court in the case of Rajni Kumari (supra) held that the State Election Commission has the jurisdiction to entertain both pre and post disqualification matter.
80. Paragraphs 20 and 26 to 29 of the Rajni Kumari (supra) judgment read as follows:
"20. The issue in the present case is not a dispute about the meaning of the aforesaid words but of the legal authorization of the State Election Commission to enter upon a reference and decide an issue of disqualification of a candidate either existing from before the elections or having incurred after the elections vis-a-vis the bar of questioning an election except by way of an election petition Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 70/86 as envisaged under Section 138 of the Act read with Article 2430(b) of the Constitution of India. This issue of forum has therefore to be resolved as it is the contention of the respective parties that the State Election Commission cannot exercise a power which falls within the realm of an election petition. This, in my opinion, would be dependent on the peculiar facts of each case and which has to be applied on case to case basis.
26. In order to make the provisions of Article 243F(2) of the Constitution of India workable and to give a harmonious construction to the provisions aforesaid it can be safely construed that the exercise of power by the State Election Commission would be confined to the disqualifications under Section 136 of the 2006 Act and not in relation to any election dispute as contemplated under Section 137 read with Section 139 of the Act.
27. There does not appear to be an Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 71/86 area of conflict inasmuch as an election petition can be filed within 30 days and which would obviously be based on facts relating to the grounds of an election petition as envisage in Section 139 of the Act which may also include disqualification. The bar contained in Section 138 of the 2006 Act read with Section 2430 of the Constitution of India cannot bar the operation of the constitutional intent under Article 243F(2) of the Constitution of India which was consciously inserted simultaneously for providing a forum to decide an issue of disqualification separately whether existing before election or incurred after election.
28. It is here that we have to analyse that where an issue can be decided only on the leading of evidence through an election petition, an issue of disqualification ex facie can be decided by the authority as prescribed in terms of the legislation under Article 243F(2). To illustrate the same, if a Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 72/86 person has been convicted in a criminal case that renders him disqualified as per the Act and such a fact remains undisputed, then a pre- existing disqualification or incurred even after the elections attracts a reference to the appropriate authority under Article 243F(2) of the Constitution of India. Can this be said to be unconstitutional or even in conflict of Article 2430(b) of the Constitution of India? An obvious answer would be that the interpretation of both the provisions namely Section 136 and Section 138 of the 2006 Act have to be first tested on the presumption of their constitutional validity and their harmonious existence. The said Articles; operate simultaneously without trenching on each other. They can work independently without affecting the right of an elected candidate or the rights of an aggrieved person who can approach the appropriate forum. The authority ultimately vests in the State, one on the administrative Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 73/86 side that may exercise as a quasi judicial power and the other bestowed on a duly constituted tribunal.
29. Another illustration would be, which commonly arises, is in matters of reserved constituencies where a fake certificate depicting caste is utilized by a candidate for contesting the elections. If the document on the basis whereof a caste reservation is found to be fake, having not been issued by the competent authority, such a case can be a matter of reference under Article 243F(2) of the Constitution to the appropriate authority under a law made by the State Legislature. What is to be examined is as to whether there would be a total bar of entertaining any such dispute by way of a reference and which is not a pure election dispute."
81. Thus following the judgment of the Hon'ble Apex Court in Kumari Madhuri Patil (supra), the State Government came out with a resolution, as incorporated above creating a Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 74/86 Directorate for the enquiry into the Caste status relating to the Scheduled Castes/Scheduled Tribes.
82. In that backdrop, when the respondent no. 9 made a complaint on the Caste status of the petitioner alleging that he does not belong to the Caste 'Dusadh', the State Election Commission, Bihar, Patna in line with the guidelines/resolution of the State Government was fully justified in taking up the matter and referring it to the fact finding Committee, the Caste Scrutiny Committee for the determination of the caste.
83. Thus the issue no. (i) is decided against the petitioner. 'The Commission' was fully justified in taking up the matter and further referring it to 'the Committee' to provide report.
84. The next question is as to whether the Caste Scrutiny Committee upon receipt of the order/letter of 'the Commission' could have referred the matter to the Additional Director General (Weaker Section), C.I.D., Bihar, Patna.
85. The answer again will be in the affirmative. After constitution of the Directorate by the State Government vide resolution dated 08.10.2007 (published in the gazette on 19.10.2015), 'the Committee' rightly sent the matter to 'the C.I.D.' for conducting an enquiry into the caste status of the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 75/86 petitioner. The issue no. (ii) is again decided against the petitioner.
86. Now the question that needs to be answered is as to whether 'the C.I.D.' was justified in transferring the matter to the local Police by requesting the I.G. (Magadh range), Gaya to enquire into the Caste Status of the petitioner.
87. The Court will again have to give a re-look to the guidelines of the Hon'ble Apex Court in the Kumari Madhuri Patil (supra) case. In sub paragraphs 4 and 5 of paragraph- 13 of the said judgment, the Hon'ble Apex Court held that there should be Vigilance Cell in the Directorate consisting of Senior Deputy Superintendent of Police in overall charge and such member of Police Inspectors to investigate into the social status claims. The Inspectors would go to the local place and personally verify and collect all the facts of the social status claimed by the Social Status claimed by the candidate and should thereafter submit report the Directorate.
88. Again the resolution dated 08.11.2007 of the State Government by which it constituted the Directorate talks about the enquiry to be conducted through the ADG (Weaker Section), C.I.D., Bihar, Patna.
89. Nowhere in the scheme of things and/or the Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 76/86 direction of the Hon'ble Apex Court/the State Government resolution, the relegating of the powers and duties by 'the C.I.D.' to the local authorities have been envisaged. There was a purpose behind the said direction of the Hon'ble Apex Court/resolution of the State Government. It wanted an independent enquiry by the Directorate through the Senior Deputy Superintendent of Police and team of Inspectors without being influenced by any local consideration.
90. Thus by referring the matter to the Inspector General (Magadh range), Gaya, the A.D.G. (Weaker Section) C.I.D., Bihar, Patna not only abdicated its duties of conducting an independent enquiry into the caste status of the petitioner as reqested by 'the Caste Scrutiny Committee', it defeated the very purpose of the resolution dated 08.11.2007 issued by the State Government which had assigned the file to the Directorate.
91. Certainly, the direction of the Hon'ble Apex court/resolution of the State Government was/were not to create a Directorate which will act as a Post Office, rather it wanted an active role on its part and a genuine enquiry into the Caste Status of an individual as it affects not only the person concerned but also his family members and extended family/agnates as they may also be enjoying the same caste Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 77/86 status.
92. Why the word Post Office has been used for 'the C.I.D.' will be clear when the details on how the story subsequently unfolded is/are incorporated hereinbelow.
93. As per the story, once 'the C.I.D.' received the request of the Caste Scrutiny Committee (vide letter no. 20170 dated 30.10.2023), it in turn vide letter no. 1747 dated 14.11.2023 made a request to the I.G. (Magadh range), Gaya to enquire into the matter.
94. The I.G. (Magadh range), Gaya referred the matter to the office of the Senior Superintendent of Police, Gaya vide letter no. 1732 dated 21.11.2023 and 1757 dated 24.11.2023.
95. This followed the constitution of a Committee of Dy.S.P. with Inspector and Sub-Inspector in it by the office of Sr.S.P., Gaya vide letter no. 9725 dated 27.11.2023.
96. An enquiry thereafter was conducted by the local Police into Caste status of the petitioner with a Sub-Inspector in the said Committee.
97. Once the enquiry was conducted, the enquiry report was sent to the office of the Sr.S.P. vide office letter no. 289 dated 30.01.2024 issued by the Additional S.P., Gaya.
98. Thereafter the return journey of the enquiry report Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 78/86 started and vide office letter no. 1692 dated 21.02.2024, the Sr. S.P., Gaya sent it to the office of the I.G. (Magadh range), Gaya who vide his office letter no. 314 dated 22.02.2024 sent it to 'the C.I.D.'
99. Once the enquiry report reached the desk of 'the C.I.D.' whether it looked into the report and recorded its satisfaction or not, this Court wanted to ascertain.
100. 'The C.I.D.' vide its office letter no. 203 dated 07.03.2024 forwarded the enquiry report to the Caste Scrutiny Committee and the said letter is incorporated hereinbelow:
i= la[;k&vuqlwfpr tkfr ,oa tutkfr laj{k.k d{k@24-30-2023@203 fcgkj iqfyl eq[;ky;
¼vijk/k vuqla/kku foHkkx ,oa detksj oxZ izHkkx½ izs'kd] vij iqfyl v/kh{kd] detksj oxZ vijk/k vuqla/kku foHkkx] fcgkj] iVukA lsok esa] eks0 fljktqíhu valkjh] ljdkj ds voj lfpo] lkekU; iz"kklu foHkkx] fcgkj] iVukA izlax%& vkidk dk;kZy; i= la[;k&11@vk0&tk0&27@2023 lk0iz0 20170 fnukad 31-10-2023 fo'k;%& Jh fcjsUnz dqekj mQZ x.ks"k ikloku] firk Jh cCyw mQZ ckyk ljdkj] Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 79/86 eksgYyk&turk dkWyksuh] cSjkxh] nsoh LFkku ds utnhd] Fkkuk MsYgk] ftyk x;k dh tkfr lR;kiu ds laca/k esaA &&&000&&& egk"k;] mi;qZDr izklafxd fo'k;d Jh fcjsUnz dqekj mQZ x.ks"k ikloku] firk Jh cCyw mQZ ckyk ljdkj] eksgYyk&turk dkWyksuh] cSjkxh] nsoh LFkku ds utnhd] Fkkuk MsYgk] ftyk x;k ds tkfr lR;kiu ikjlukFk lkgq] vij iqfyl v/kh{kd] uxj] ikjlukFk lkgq] ftyk x;k ds usr`Ro esa xfBr rhu lnL;h; Vhe ds }kjk djk;h x;h gSA tkap izfrosnu ¼vuqyXudksa lfgr½ lefiZr fd;k x;k gSA ftls layXu dj izsf'kr fd;k tk jgk gSA bl ij iqfyl egkfuns"kd] detksj oxZ] vijk/k vuqla/kku foHkkx] fcgkj] iVuk dk vuqeksnu izkIr gSA vuqyXud&;FkksifjA fo"oklHkktu g0& vij iqfyl v/kh{kd] detksj oxZ] vijk/k vuqla/kku foHkkx] fcgkj] iVukA
101. As the letter states that the enquiry report has been approved by the ADG (Weaker Section) C.I.D., Bihar, Patna, this Court requested Mr. Manish Kumar, learned G.P.-4 to bring the original file of 'the C.I.D.' for its perusal to ascertain the satisfaction/approval of 'the A.D.G'. Pursuant thereto, learned G.P.-4 provided the original file and on perusal of it, this Court found that 'the A.D.G.' has simply put in his initial on the file on 07.03.2024 without incorporating a single word.
102. This in the considered opinion of the Court is Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 80/86 complete non-application of mind on his part. The Court records that the said exercise was conducted/file perused only to see whether even after relegating the matter to local authority, once the report was received on his/her desk, whether it was evaluated by 'the C.I.D.' or not and further recorded his/her satisfaction with the report in the file or not.
103. The moot question still remains whether the Hon'ble Apex Court/the State Government wanted an active role of the Directorate or it wanted it to act as a Post Office.
Where in the scheme of things, the role of the I.G. (Magadh range), Gaya and the Sr.S.P., Gaya as also enquiry by the local Police were envisaged. This Court can safely hold that 'the C.I.D.' abdicated its duty and merely acted as a Post Office by receiving the request of 'the Committee', forwarding it to the I.G. (Magadh Range), Gaya and on receipt of the report forwarding it to 'the Committee.'
104. If the Directorate was merely to act as a Post Office and the enquiry is to be ultimately conducted by the local Police, why such a big routine exercise. The Caste Scrutiny Committee could have straightaway referred the matter to the district Superintendent of Police for an enquiry and further could have acted on the report.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 81/86
105. Certainly, the Hon'ble Apex Court/the State Government wanted an impartial enquiry into the caste status of an individual at the Directorate level without being prejudiced by any local considerations. Thus, the professional Inspectors inducted by the Additional Director General (Weaker Section) C.I.D., Bihar, Patna being trained exclusively to enquire into the Caste status of an individual cannot be equated with the local Inspectors/Sub-Inspectors who beside maintaining the law and order and investigating the crime are/were also assigned the job to enquire into Caste status of an individual.
106. The question is that if the enquiry has not been conducted by the Directorate in line with the Hon'ble Apex Court judgment in Kumari Madhuri Patil (supra) case as also the resolution dated 08.11.2017 issued by the State Government, whether it can be categorised as a report of 'the C.I.D.' and further can be taken into consideration to decide the Caste status of the petitioner. The response of this Court is in negative. In the absence of the enquiry having not been conducted by the Additional Director General (Weaker Section) C.I.D.,Bihar, Patna, it cannot be taken into consideration to decide the Caste status of an individual.
107. Thus the issue nos. (iii) to (v) are decided in Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 82/86 favour of the petitioner. The enquiry having not been conducted by the Additional Director General (Weaker Section), Crime Investigation Department, Bihar, the same cannot be considered to be an enquiry conducted in line with the guidelines envisaged in Kumari Madhuri Patil (supra) by the Hon'ble Apex Court and the resolution dated 08.11.2007 issued by the State Government and further cannot be the basis for taking a decision regarding the Caste status of the petitioner.
108. The next question is whether the Caste Scrutiny Committee was duty bound to look into this aspect or not. The Committee in one paragraph no. 3 has dealt with it. Paragraph- 3 of the order dated 03.06.2024 read as follows:
3- vijk/k vuqla/kku foHkkx ds i= la[;k&203 fnukad&07-03-2024 }kjk Jh fcjsUnz dqekj mQZ x.ks'k ikloku] firk&Jh cYyw mQZ ckyk ljdkj] turk dkWyksuh] cSjkxh] nsoh LFkku ds utnhd] Fkkuk&Msygk] ftyk&x;k dh tkfr lR;kiu ls lacaf/kr izfrosnu lkekU; iz'kklu foHkkx esa miyC/k djk;k x;kA vijk/k vuqla/kku foHkkx }kjk lkekU; iz'kklu foHkkx ds ladYi la[;k&3887 fnukad&08-11-2007 }kjk fofgr izfdz;k ds varxZr djk, x, tkWp dk lkj fuEuor gS -
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 83/86 (underline by the Court)
109. The way 'the Committee' has dealt with the matter is really surprising. It being the final authority to decide the caste status of an individual was duty bound to incorporate its satisfaction that the office of the Additional Director General (Weaker Section) C.I.D., Bihar, Patna has strictly followed the resolution no. 3887 dated 08.11.2007 of the General Administration Department (earlier the Personal of Administrative Reforms Department), Bihar, Patna. It miserably failed on this count. It has only recorded that 'the C.I.D.' has followed the resolution dated 08.11.2007 of the General Administration Department and stopped at that.
110. 'The Committee' must realise that it has been created for a purpose and a decision rendered by it has far reaching effect not only on an individual but also those related to it and as such before proceeding in the matter, it has to record its satisfaction that the enquiry has been conducted as per the guidelines/resolution and cannot make passing reference as done in the present case.
111. Having failed to record its satisfaction, the findings arrived at by 'the Committee' and communicated on 03.06.2024 is fit to be rejected. Thus, the issues number (vi) is Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 84/86 also decided in favour of the petitioner. The enquiry having not been conducted by 'the C.I.D.' and 'the Committee' having failed to record its satisfaction on this aspect, the same has/have to be interfered with.
112. Office of the Additional Director General (Weaker Section) Crime Investigation Department, Bihar, Patna which was created vide resolution no. 08.11.2007 issued by the General Administration Department, Bihar, Patna pursuant to the decision rendered by the Hon'ble Apex Court in Kumari Madhuri Patil (supra) cannot be allowed to act as a mere Post Office and an enquiry report which has not been enquired through the said Directorate cannot be considered a report of the Directorate.
113. Similarly, the Caste Scrutiny Committee under the General Administration Department, Bihar, Patna having failed to record its satisfaction that the office of the Additional Director General (Weaker Section), C.I.D., Bihar, Patna has submitted the enquiry report as envisaged under the directives of the Hon'ble Apex Court and the resolution no. 08.11.2007 and has only made passing reference, it has failed to fulfill its duty before proceeding ahead and deciding the Caste status of the petitioner.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 85/86
114. This takes us to the last issue no. (vii). Whether in the aforesaid facts and the circumstances, the decision has to be interfered with. The answer again is in the affirmative.
115. This Court thus holds that in the absence of the procedure laid down by the Hon'ble Apex Court in Kumari Madhuri Patil (supra) and the resolution dated 08.11.2007 issued by the General Administrative Department, Bihar, Patna having not been followed in its letter and spirit, the letter no. 203 dated 07.03.2024 issued by the office of the Additional Director General (Weaker Section) Crime Investigation Department, Bihar, Patna as also the decision dated 03.06.2024 taken by the Caste Scrutiny Committee and communicated vide memo no. 8702 dated 03.06.2024 by the General Administration Department, Bihar, Patna are set aside.
116. The Court reiterates that it has not looked into the Caste status of the petitioner rather has only considered the decision making process. It has further held the decision of the State Election Commission, Bihar, Patna to entertain the complaint of the respondent no. 9 as legal and valid.
117. The State Election Commission, Bihar, Patna thus shall take up the complaint of the respondent no. 9 afresh and proceed further in accordance with law.
Patna High Court CWJC No.6976 of 2024 dt.13-09-2024 86/86
118. The writ petition stands disposed of with the aforesaid observations. No cost.
(Rajiv Roy, J) Adnan/-
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