IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7032 of 2011 RATAN KUMAR . Versus THE STATE OF BIHAR & ORS . ----------- 3. 12.05.2011 Heard learned counsel for the petitioner and the State. The petitioner seeks quashing of an enquiry report dated 14.2.2011 as endorsed on 15.2.2011/11.3.2011 and 25.3.2011, cancelling his caste certificate as belonging to the “Chaupal” caste which it is stated stands at Serial No. 7 of the list of Scheduled Castes in the State of Bihar under the Scheduled Castes and Scheduled Tribes Order (Amending Act, 1976) dated 18.9.1976. I.A. No. 3130 of 2011 has been filed challenging the order dated 13.4.2011 issued by the Sub Divisional Officer in pursuance of the aforesaid orders issuing the formal cancelling of the caste certificate based on the directions of the District Magistrate dated 30.3.2011. The latter order is stated not to have been served on the petitioner. Counsel for the State has produced a Xerox copy of the order dated 30.3.2011. The same shall be retained on the record. Learned counsel for the petitioner submits that his caste status as a “Chaupal” stands affirmed 2 by certificates granted as far back as 8.7.1994/11.2.1994/13.9.1994. Based on the same he came to be appointed as a school teacher in the year 2006 at the Jagarnath Adarsh Madhya Vidyalaya, Kishanganj. Frivolous allegations were made with regard to his caste status leading to enquiry confirming the caste status on more than one occasion i.e., 5.8.2008 by the Sub-Divisional Officer, Kishanganj, 8.8.2008 by the Block Development Officer, Kishanganj, 12.12.2008 again by the Block Development Officer, Kishanganj and 31.12.2008 by the Sub-Divisional Officer, Kishanganj. Relying on these enquiry reports annexed to the writ petition it was submitted that these were no perfunctory enquiry but well reasoned and considered with materials in support of the same. Contrary to the same, the impugned orders originating from the order dated 14.2.2011 passed by the Executive Officer, Kishanganj was ex-parte in nature without notice to the petitioner and an opportunity to defend his caste status. Learned counsel invites the attention of the Court to the pleadings in Paragraph-14 of the writ petition that the alleged enquiry held was without notice to him and behind his back. The enquiry was completed 3 within a period of seven days only. Alleging as instigated enquiry strong reliance is placed on the enquiry report dated 5.8.2008 wherein it has also been noticed that frivolous allegations were being made with regard to the caste status of the petitioner. Counsel for the State submits that in absence of a counter affidavit he is not in a position to make any further submissions beyond placing the order of the District Magistrate dated 30.3.2011. He submits that it is possible that the petitioner was heard before the order dated 14.2.2011 was passed and therefore a counter affidavit may be necessary. The question of judicial review of an administrative order arises only after the administrator has acted strictly within the confines of the law in arriving at the decision. In that event, if circumstances so warrant, the Court may or may not go into the merits of the decision. But if the decision of the administrator is not in consonance with the law, it is no decision in the eyes of law. The question of judicial review of such a decision on merits simply does not arise as the occasion has not arrived. If an administrative decision, to the prejudice of a person has been taken behind his 4 back, no further grounds are required to vitiate the order as it suffers from gross infirmity in the decision making process. The judicial review at this stage is confined to this aspect only. If an administrative authority has passed an order which is otherwise reasoned, an order has to be tested on basis of the recitals contained in the order and cannot be supplemented by a counter affidavit to explain what was meant in the order or what transpired before the order was passed. There is no finding or reasoning in the order dated 14.2.2011, that the petitioner was noticed or that he failed to respond to the show cause notice. Once there had been an indication in the order of intimation of him there would have been a presumption in favour of the State that it has acted in accordance with law by invoking Section 114(e) of the Evidence Act. But when the order itself is silent on this aspect, the presumption is to the contrary. Assuming that the petitioner was noticed and had been heard as was suggested on behalf of the State, there is no discussion in the order of what defence the petitioner had taken. Non-consideration of his defence shall again vitiate the administrative order. 5 Before a person is to be deprived of a benefit of long standing, a caste certificate in the present case, and which definitely can have very adverse consequences for the individual, he has a right to be heard. This is a facet of what has been described as natural justice. It is not written law but a law which inheres in lawful human behaviour. Those who exercise administrative powers affecting the citizen are also answerable and accountable. The executive officer is stated to be an educated person recruited by the State Government through a process of selection. The Court is pained of the manner in which the orders are passed by Executive authority unmindful of their duties and responsibilities generating unnecessary litigation burdening not only the Court but frittering and wasting away the financial resources of the State along with time and money. Had the executive officer passed an order after hearing the petitioner and considering his defence, perhaps the litigation could have been brought to an end today one way or the other. The result of the impugned order is that litigation continues. Calling for a counter affidavit at this stage would have served no purpose as the Court shall not 6 decide the caste status. The order dated 30.3.2011 of the District Magistrate placed before the Court is also of no help as it simply refers to the earlier report without discussion that the petitioner was noticed or heard. The impugned orders discussed in the opening paragraph of this order including the original order dated 14.2.2011 and the final order dated 13.4.2011 cancelling the caste status of the petitioner are therefore set aside. The matter is remanded to the Principal Secretary, Department of Welfare, Government of Bihar, Patna with directions to ensure the constitution of a committee for determination of the caste status in accordance with the guidelines of the Supreme Court in 1994(6) SCC 241 (Kumari Madhuri Patil & Anr. Vs. Addl. Commissioner Tribal Development & Ors.) as modified in1997(4) SCC 271 (Director of Tribal Welfare Vs. Laveti Giri). The writ application is allowed. P. Kumar ( Navin Sinha, J. )