IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14416 of 2010 1. SHWETA RANI SINGH D/O SRI UMA SHANKAR SINGH R/O ARFABAD COLNY, NALA KE PAR, P.O.GULZARBAGH, P.S.ALAMGANJ, DISTT-PATNA Versus 1. THE STATE OF BIHAR THROUGH SPECIAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS GOVERNMENT OF BIHAR, PATNA 2. THE DISTRICT MAGISTRATE BHABHUA, KAIMUR 3. THE ADDITIONAL DISTRICT MAGISTRATE BHABHUA, KAIMUR 4. THE SUB DIVISIONAL OFFICER BHABHUA, KAIMUR 5. THE DISTRICT WELFARE OFFICER BHABHUA, KAIMUR 6. THE BLOCK DEVELOPMENT OFFICER BHABHUA, KAIMUR 7. MR. MAYANK WARWADE S/O NOT KNOWN DISTRICT MAGISTRATE , BHABHUA, KAIMUR 8. MR. ABDUL MANNAN S/O S.K.MOHAMMAD MUNSHI ADDITIONAL DISTRICT MAGISTRATE , BHABHUA, KAIMUR, R/O VILL BHERIHARWA, P.S.RAMGARHWA, DISTT-EAST CHAMPARAN ----------- 3. 17.05.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner came to this Court in CWJC No. 17028 of 2008 for issuance of a caste certificate as “Kharwar”, a Scheduled Tribe. The District Magistrate held that she was a “Kahar”, a Backward Caste, and not “Kharwar”, relying upon the caste description of the grand-father in a FIR as “Kahar” and Rent Assessment Register of the State. The petitioner argued on basis of certain entries made of her “Kharwar” status in a proceeding under the Bihar Tenancy Act. It was urged that their grand-father, father and uncles, more particularly Uncle Shivjee Singh, had been granted a caste certificate as “Kharwar”. The latter had come to this Court in CWJC No. 6561 of 1988.Directions were given to hold an enquiry and then issue a caste certificate. The caste certificate as “Kharwar” was issued thereafter. This Court remanded the matter to the Collector who has passed the impugned order dated 8.7.2010 holding that the petitioner was a “Kahar” and not a “Kharwar”. Learned Counsel for the petitioner contended that the impugned order suffers from the same infirmity which was rejected by this Court in CWJC No. 6561 of 1988 with regard to the proceeding under the B. T. Act, notwithstanding which reliance has been placed on the same 2 again. The respondents virtually seek to question their own order in having granted the “Kharwar” certificate to the uncle of the petitioner Shivjee Singh. The defence is that it was issued under fear of contempt. He submits that the respondents cannot challenge their own order. The impugned order proceeds on conjectures and surmises that the caste certificate issued to other family members do not appear to have been issued after proper enquiry. The submission therefore is that the petitioner is entitled to a caste certificate as “Kharwar” as there cannot be two different castes of “Kharwar” and Kahar, a scheduled tribe and a backward caste, within the same family. If in pursuance of an order of the Court the “Kharwar” certificate has been granted to the uncle of the petitioner perhaps nothing further is required to hold that the petitioner is entitled to the same benefit. Learned Counsel for the State from the counter affidavit submitted that the petitioner was not entitled to a “Kharwar” certificate as the authorities were satisfied that even the grand-father Hanuman Prasad Arya was a member of “Kahar” community. An attempt has been made to suggest that the caste certificate issued to the Uncle Shivjee Singh was a matter which itself required further enquiry and investigation. The matter, as it stands, perhaps appear indefensible for the respondents. If the caste certificates has been issued to the other family members of the petitioner as a “Kharwar”, it stands to reason how the petitioner can be denied the same by describing her as a “Kahar”. The defence of the respondents that the caste certificate issued to the other family members did not appear to have been issued properly, is based on surmises and conjectures and cannot be a foundation of the impugned order. If the respondents have issued a certificate they 3 cannot question their own order unless any allegation of fraud etc. are laid out which does not appear to be subject of any consideration in the impugned order. Likewise, if the respondents in pursuance of any orders of the Court have issued a “Kharwar” certificate to the uncle of the petitioner, there shall be a presumption that they did their enquiry and homework before issuing the same. It shall not be open for the successive District Magistrate to question the action of his predecessors. There has to be uniformity in government orders otherwise element of arbitrariness shall remain with every successor reopening matters. But, the situation changes fundamentally by reason of a Xerox copy of the District Gazette produced on behalf of the State during course of submission, dated 17.4.1989 purporting to cancel the scheduled tribe status of the entire family. This document has not been brought on record by way of an affidavit. Learned Counsel for the State from the earlier orders of the Court and the enquiry reports of the authorities submits that this District Gazette does not seem to have engaged attention of the authorities at any stage and neither does it appear to have been placed before the Court in the earlier proceedings by the petitioner or her other family members. The submission therefore is that in determination of the caste status documents relevant and germane for the purpose have not been considered. He submits that the impugned order may be set aside and the matter may be remanded to the District Magistrate to reconsider the matter afresh in accordance with law after granting due opportunity to the petitioner. The stand of the State is fair and unexceptional. The order dated 8.7.2010 of the District Magistrate, Kaimur at Bhabua is set aside. The matter is remanded to the State Government for constitution of a 4 Committee for determination of the caste status of the petitioner, the constitution of which shall be as laid out by the Supreme Court in 1994 (6) SCC 241 (Kumari Madhuri Patil Vs Addl. Commissioner, Tribal Development and as modified in (1997) (4) SCC 271 (Director of Tribal Welfare Vs Laveti Giri). The Committee shall issue a show cause notice to the petitioner with regard to the District Gazette published with opportunity to rebut the same and then pass a fresh reasoned speaking order within a maximum period of four months from the date of receipt and/or presentation of a copy of this order, provided the petitioner herself cooperates. Let a Xerox copy of the District Gazette be kept on the record. The writ application stands disposed with the aforesaid observations. Snkumar/- (Navin Sinha,J.)