IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12708 of 2004 KAUSHAL KUSUM SON OF SHRI BANKESHWARI PRASAD, RESIDENT OF VILLAGE PORAHA, P.S. MANPUR, DISTRICT NALANDA ………Petitioner Versus 1.THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORS, GOVERNMENT OF BIHAR, PATNA 2. DISTRICT MAGISTRATE, NALANDA AT BIHARSHARIF 3. SUB DIVISIONAL OFFICER, NALANDA AT BIHARSHARIF 4. BLOCK DEVELOPMENT OFFICER, BIHSHARSHARIF 5. CIRCLE OFFICER, BIHARSHARIF ….Respondents With CWJC No.12654 of 2005 KAUSHAL KUSUM SON OF SHRI BANKESHWARI PRASAD, RESIDENT OF VILLAGE PORAHA, P.S. MANPUR, DISTRICT NALANDA ………Petitioner Versus 1. RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR, BIHAR, THROUGH THE REGISTRAR, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR, BIHAR 2. VICE CHANCELLOR, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR, BIHAR 3. REGISTRAR, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR, BIHAR 4. EXAMINATION CONTROLLER, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR, BIHAR 5. DIRECTOR, RESEARCH INSTRUCTION CUM DEAN, POST GRADUATE STUDIES, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR, BIHAR 6. PRINCIPAL CUM DEAN, BIHAR VETERINARY COLLEGE, PATNA 7. DR. ANKESH KUMAR SON OF SRI GORELAL PASWAN, RESIDENT OF MOHALLA TOPKHANA BAZAR (KATGHAR), P.O., P.S. MUNGER, DISTRICT MUNGER, BIHAR 8. REGISTRAR, INDIAN VETERINARY RESEARCH INSTITUTE, IZATNAGAR, U.P. ……Respondents For the Petitioner: M/s Banwari Sharma, Shiv Kumar, Binod Kumar Jha For the University:M/s.Amarnath Deo, Vijay Bharti For the State : Mr.Kumar Alok,SC 19, Mr.R.K.Singh,AC to SC19 Mr.Himanshu Kumar Akela, AC to GA 5 O r d e r 5 22-12-2009 Both these writ applications being C.W.J.C.No.12708 of 2004 and C.W.J.C.No.12654 of 2005 are 2 taken up together as the issue involved in these writ applications is identical in nature. In C.W.J.C.No.12708 of 2004 the petitioner prays for quashing the order dated 19.7.2004 (Annexure-8) passed by the Subdivisional Officer, Nalanda at Biharsharif canceling the Scheduled caste certificate granted to the petitioner on 26.4.1991 (Annexure-2) on basis of the State Government‟s circular dated 26.4.1991 3.3.1978 contained in Annexure-1. In C.W.J.C.No.12654 of 2005, the petitioner prays for a direction to the respondent authorities to issue migration certificate to the petitioner, as he has passed the post graduate degree in M.V.Science from Patna Veterinary College. The respondent State as well as respondent University including respondent no.8 have filed their respective counter affidavits. The issue involved in this case is whether the authorities are justified in not issuing the migration certificate of Post Graduate degree in M.V. Science of Patna Veterinary College as Caste Certificate on the basis of which admission was taken, was found to be incorrect. The petitioner‟s case in short is as follows; the petitioner‟s father belonged to Kurmi caste. He married one Girja Devi in the year 1969 belonging to Scheduled caste category. The Government of Bihar through the Department of Personnel and Administrative Reforms issued a circular vide 3 memo no.99 dated 3.3.1978 that sons and daughters of a „Swarna‟ (Upper) Caste Hindu father and Scheduled Caste mother would be treated as Scheduled Caste. However, the aforesaid circular was amended vide memo no.605 dated 11.12.1985 to the extent that child born only from legally Hindu couple would be treated as Scheduled Caste. The aforesaid circular has been annexed as Annexure-1 in C.W.J.C.No.12708 of 2004 as well as Annexure-B and B/1 to the counter affidavit filed on behalf of the State. On the strength of the aforesaid circular the petitioner filed an application for issuance of caste certificate which was duly granted to him by the Subdivisional Magistrate, Biharsharif on 25.4.1991. A copy of the caste certificate dated 25.4.1991 is annexed at Annexure-2. It is relevant to point out that a declaratory Title Suit No.57 of 1995 was filed by the petitioner as well as his mother, in which Dr. Amrit Prasad was a defendant. According to them, Dr. Amrit Prasad happens to be the father of petitioner‟s mother. In Title Suit, the trial court pronounced that Girija Devi belongs to Passi Caste which comes within Scheduled Caste category. The petitioner thus in view of the Government circular dated 3.3.1978, contained in Annexure- 1, would come within the purview of Scheduled Caste category. In the meanwhile the petitioner passed his Graduation in B.V.Science and A.H. Course on 4.8.1999 as a schedule caste student from the Rajendra Agriculture University. Thereafter he 4 got admission in P.G. degree in M.V.Science and passed the same on 26.8.2002, topping the University. In the meantime some complaint was made in respect of genuinity of his caste certificate which resulted in withholding his Post Graduate result. The petitioner moved this court vide C.W.J.C.No.7852 of 2002 for a direction to the Rajendra Agriculture University to declare his Post Graduate result in M.V.Science. The petitioner pleaded that early declaration of the result was necessary as he applied for registration in Ph.D. course for which last date is 29.7.2002. This court after hearing counsel for the parties, ordered as follows: “In the facts of the case, as Post Graduate result have already been published and only the result of the petitioner has been withheld, the authorities should look into the matter and pass appropriate orders declaring the result of the petitioner and in any event if the same was withheld for verification of his caste certificate, provisional certificate can be issued, making it conditional to the verification report”. In pursuance of the aforesaid order, provisional certificate was issued to the petitioner on the basis of which he got admission in Indian Veterinary Research Institute, Izzat Nagar in the State of U.P. In the meantime, the enquiry was completed and the petitioner was found belonging to Kurmi caste and as such the caste certificate declaring him earlier as Scheduled Caste dated 26.4.1991 was cancelled vide order dated 30.7.2003 with 5 retrospective effect. The petitioner being aggrieved by order dated 30.7.2003, filed C.W.J.C.NO.10576 of 2003. This court noticing that the impugned order dated 30.7.2003 cancelling the Caste Certificate was issued behind the back of the petitioner and without giving him opportunity of hearing quashed the same with a direction to the Sub-Divisional officer to conclude the enquiry and pass a final order within six weeks from the date of appearance of the petitioner before him. This court further observed that so long as the Sub-Divisional Officer does not pass the order, the petitioner shall not be entitled for any benefit. It would be relevant to quote the last two paragraphs of the order dated 23.4.2004 passed in C.W.J.C.No.10576 of 2003. “Petitioner shall appear before the Subdivisional Officer, Biuharsharif witin four weeks from today and shall place his case. The Subdivisional Officer, after holding such enquiry, as he deems fit, shall pass order in accordance with law. So long the Subdivisional Officer does not pass the order, petitioner shall not be entitled for any benefit available to the members of the Scheduled Caste. The Subdivisional officer shall conclude the enquiry and pass the final order within six weeks from the date of appearance of the petitioner before him”. Pursuant to the order of this court, the Subdivisional Officer, Nalanda, Biharsharif started the enquiry afresh and also 6 afford an opportunity of hearing to the petitioner. Moreover, the Sub-Divisional Officer vide impugned order dated 19.7.2004 held that the petitioner‟s mother did not belong to Pasi caste and as such the petitioner would not belong to Scheduled Caste. Thus the Sub-Divisional Officer, Biharsharif cancelled the Caste Certificate which was granted to the petitioner vide memo no.566 dated 26.4.1991. The petitioner states that pursuant to the impugned order canceling his caste certificate, the Rajendra Agriculture University, Pusa, Samastipur issued notification no.148/Raw dated 23.8.2007 rusticating him from the University with retrospective effect and the degree of P.D.C. and transcript of B.V. Science and A.H. and PDC of transcript of M.V. Science were too annulled. The petitioner states that in fact his admission in Ph.D. course in V.G.D. from Indian Veterinary Research Institute, Izzatnagar, U.P. has also been cancelled. The petitioner has filed an I.A. Application being I.A.No.5616 of 2007 for quashing the impugned notification no.148/Raw, Pusa dated 23.8.2007 contained in memo no.871/Raw, Pusa. The I.A.No.5616 of 2007 is also taken up together with the two writ applications as the matters are interlinked. Mr. Amarnath Deo, learned counsel appearing on behalf of the Rajendra Agriculture University opposed these writ petitions and Interlocutory Application. He contended that no benefit could be granted to the petitioner who has obtained 7 admission on the basis of forged certificate. He submits that this court vide order dated 16.7.2002 in C.W.J.C.No.7852 of 2002, though directed for declaration of the Post Graduate result of the petitioner, nonetheless also observed that issuance of provisional certificate would be conditional to the verification report of caste certificate. He further submits that the petitioner fully well knew that he did not belong to the Scheduled Caste but by putting forth a false claim that his mother belonged to Scheduled Caste got the aforesaid certificate vide memo no.566 dated 26.4.1991. He submits that the Title Suit filed by the petitioner and his mother for declaration that latter was daughter of defendant Dr. Amrit Prasad who belonged to Pasi Caste and as such the petitioner would also belong to Scheduled Caste in view of the circular dated 3.3.1978 of the Department of Personnel and Administrative Reforms, Government of Bihar, was collusive in nature. He submits that the enquiry report would show that Dr. Amrit Prasad was in fact not father of petitioner‟s mother Girja Devi and petitioner obtained scheduled caste certificate on false plea and misrepresentation. Thus, the stand of the University is that Graduation and Post Graduation certificates have rightly been cancelled by notification dated 23.8.1987 contained in Annexure-12 of I.A. No.5616 of 2007. In support of his plea learned counsel for the University relied upon a decision of the Apex Court in the case of Yogesh Ramchandran Naikwadi Vs State of Maharahstra & 8 Ors, reported in (2008) 5 SCC 652. A notice was also issued to the Registrar, Indian Veterinary Research Institute, Izatnagar, U.P. in C.W.J.C.No.12654 of 2005. Counsel for the aforesaid respondent stated that the petitioner‟s admission in Ph.D. course in the aforesaid University has been canceled. Counsel for the State submits that the petitioner has obtained Caste certificate of Scheduled Caste on the false plea that his mother belonged to Pasi Caste. Though the petitioner has challenged the legality of the impugned order dated 19.7.2004, he has confined his prayer for quashing the impugned notification dated 23.8.2007 whereby Rajendra Agriculture University has rusticated the petitioner with retrospective effect canceling B.V. Science and M.V. Science degree issued earlier in the year 1999 and 2002 respectively. The petitioner states that there is no allegation that he had produced a forged or fake certificate. At the maximum, the respondents can allege that he has obtained the Caste Certificate on misrepresentations. He submits that he got the Graduation degree of B.V. Science about 8-10 years back and even Post Graduate degree in M.V. Science 5-7 years back. He submits that he has already been sufficiently punished as his admission in Ph.D. course in Indian Veterinary Research Institute, Izatnagar, U.P. has been cancelled. Even assuming that he has 9 got admission in Graduation and Post Graduation degree on the basis of the incorrect caste certificate, there is no denial of the fact that he scored highest in his subject in the Post Graduation examination. The petitioner has also been deprived of Gold Medal. The petitioner submits that it would be too harsh to cancel both the Graduation and Post Graduation degree which the petitioner obtained in 1999 and 2002 respectively. In support of his contention, he relied upon a Division Bench decision in the case of Amresh Kumar Vs Principal, Bhagalpur Medical College, Bhagalpur, reported in 1982 BBCJ 302 and the Apex Court‟s decision in Shri Krishan Vs The Kurukshetra University, Kurukshetra, reported in A.I.R. 1976 SC 376. In the case of Amresh Kumar (supra) the petitioner therein has prayed for quashing the order of the Principal, Bhagalpur Medical College dated 7.5.1999, whereby his admission to the Medical College in the year 1975 has been cancelled and rescinded. The petitioner got an admission in Pre-Medical and Pre-Dental Test in 1975 on the basis of Caste Certificate issued by the B.D.O. Sadar, Patna, showing that he was a Dhobi‟‟ by Caste and thus belonged to the category of Scheduled Caste. However, as per paragraph 8(a) of the letter dated 23.9.1975, the Caste certificate should be issued either by the District Magistrate or the Civil S.D.O. or the District Welfare Officer of the area concerned. According to the respondents the admission was cancelled as a result of report by the District Welfare 10 Officer, Bhagalpur, in which it was found that the petitioner Amresh Kumar was not a Dhobi‟ but belonged to a Upper caste. Further more, the petitioner was thus asked to submit a caste certificate from the District Welfare Officer which he did. However, the respondents not being satisfied insisted for furnishing a certificate from the District Magistrate, which was not produced. It was alleged that the petitioner got the Caste Certificate from the Block Development Officer and later on from the District Welfare Officer on misrepresentations. This court observing that the certificates were not forged but genuine and the respondents having permitted to prosecute his studies up to the year 1979 from 1975, they could not be permitted to cancel the admission of the petitioner. The learned Judges further observed that if the impugned order is allowed to stand, it will lead to ridiculous and too harsh a situation not commensurate with the fault. In coming to the aforesaid view, the Division Bench of this court relied upon a decision in Shri Krishan vs. The Kurukshetra University, Kurukshetra (supra). In case of Shri Krishan the appellant‟s admission in LL.B. Part III course was refused. The University of Kurukshetra was running a three years law classes and had extended the facility to persons who were in service to attend the evening classes. The appellant who was also in service decided to take benefit of it and joined LL.B Part I classes in the year 1971. In April 1972 the petitioner appeared in the annual 11 examination of Part I, but failed in three subjects. As per University statute, the petitioner joined Part II in 1972, but was required to clear the subjects in which he had failed. The Annual examination of Part II was held in May 1973 and the appellant approached the University for granting him provisional permission to appear in the examination subject to his getting permission from his employer. On the aforesaid undertaking, the appellant was allowed to take Part II examination in May, 1973. On June 20, 1973 the appellant wrote to the University authorities that the conditions on which he was to get permission were not at all necessary and his result may now be announced. On Jun 26,1973 the respondents informed the appellant that since his percentage was short in Part I, his candidature stood cancelled and was thus refused in admission in LL.B. Part III. The Hon‟ble Apex Court after noticing the Statute holding the plea of respondents untenable, observed as follows: “6………The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear………” 12 The Hon‟ble Apex Court further observed in paragraph 7 that where a person on whom a fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. There was ample time and opportunity for the University authorities to have found out the defect. It would be useful to quote relevant extract of paragraph 7 which reads as follows: “7…………..It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestion falsi, or suppression veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant………..” In the case of Yogesh Ramchandran Naikwadi (supra) relied upon by learned counsel for the University, the appellant therein sought admission to Engineering course on basis of reservation allowed to Schedule Tribe. He claimed that he belonged to Mahadev Koli, a Scheduled tribe. The Scrutiny 13 Committee vide order dated 29.3.1975 rejected his claim. The appellant challenged the order of Scrutiny Committee in a writ petition. The Bombay High Court issued an interim order directing the 3rd respondent to accept the application of the petitioner for admission to B.E. Course by treating him a candidate belonging to Scheduled Tribe with a condition that the admission if granted will be provisional and subject to final decision. The appellant was admitted to B.E. Course and the University of Pune confirmed a degree on him on 31.3.2004. The writ petition was finally dismissed on 28.3.2006 upholding the order of Scrutiny Committee with a direction to the respondents to take appropriate steps for recall of the degree granted to the appellant. The appellant challenged the aforesaid order in the Supreme Court relying upon the case of State of Maharashtra vs Milind and R.V. Pillai v. State of Kerala, reported in (2001)1 SCC 4 and (2004)2 SCC 105 respectively. The Apex Court noticed that in Milind case, a Constitution Bench had observed that if after long time any action is taken against the beneficiary, it would not serve any constructive purpose, as public money has already been spent on his education. But nonetheless their Lordships observed that the beneficiary cannot claim to belong to Scheduled Tribe and cannot take the advantage of Scheduled Tribe order any further for any other constitutional purposes. The Apex Court after noticing the aforesaid two judgments observed 14 as follows in paragraph 7 of his judgment. “7. There may however be cases where it will not be proper to permit the student to retain the degree obtained by making a false claim. One example is where the candidates secure seats by producing forged or fake caste certificates. There may be case, where knowing full well that they do not belong to a Scheduled Tribe/Caste, candidates may make a false claim that they belong to a Scheduled Tribe/Caste. There may also be cases where even before the date of admission, the cast certificates of the candidates might have been invalidated on verification by the Scrutiny Committee. There may be cases where the admissions may be in pursuance of interim orders granted by courts subject to final decision, making it clear that the candidates will not be entitled to claim any equities by reason of the admission. The benefit extended in Milind and Vishwanatha Pillai cannot obviously be extended uniformly to all such cases. Each case may have to be considered on its own merits. Further, what has precedential value is the ratio decidendi of the decision and not the direction issued while moulding the relief in exercise of power under Article 142 on the special facts and circumstances of a case. We are therefore of the view that Milind and Vishwanatha Pillai cannot be considered a laying down a proposition that in every case where a candidate‟s caste claim is rejected by a Caste Verification Committee, the candidate should invariably be permitted to retain the benefit of the admission and the 15 consequential degree, irrespective of the facts”. The Hon‟ble Supreme Court noticing that the appellant had not forged or faked the caste certificate and he secured the degree more than four years back, he should be permitted to retain the benefit of degree but subject to certain terms. Firstly, he shall not claim or seek any further benefit by claiming to belong to a Scheduled Tribe. Secondly any expenditure by extending him the benefit of exemption from payment of fee or award of scholarship or by extending the benefit of concession in fee by treating him as a Scheduled Tribe candidate would be recoverable. In the instant case there is no allegation that the Caste Certificate produced by the petitioner was a forged certificate. There is no denial that he passed the Graduation in B.V. Science and A.H. in the year 1999 and Post Graduation in M.V. Science in the year 2002 from the Rajendra Agriculture University. Now more than ten years have passed, since the time he has graduated and seven years since the time he did his post graduation. There is no denial that he topped the merit list in his subject in the Post Graduation course. Furthermore, his admission in Ph.D course in Indian Veterinary Research Institute, Izatnagar, U.P. has been cancelled and the petitioner has also been divested of the Gold Medal. The petitioner thus has also been punished to some extent for producing incorrect caste certificate. Thus divesting the petitioner of the degrees who topped the P.G. examination 16 would not only amount to punishing a person, who has already been punished but would also now tantamount to depriving the Society of benefit of an expertise excelling in the field of Science of Veterinary and Animal Husbandry. As the petitioner had passed the Graduation and Post Graduation examinations about 8-10 years back, it would be too harsh and impractical to allow the impugned order of rustication and consequent order of canceling his degrees to hold good. In these circumstances, this court is of the opinion that very strict conformance to the conditional order of this court passed in C.W.J.C.No.7852 of 2002 would be too harsh to enforce. The Apex Court in the case of Yogesh Ramchandran Naikwadi (supra) too noticed that interim order of admission was also be subject to the result of the writ application, but still in the larger interest did not divest the appellant of the degree. Thus, the aforesaid view of mine finds support from findings and observations of Apex Court in case of Yogesh Ramchandran Naikwadi (supra). In the result, the impugned order dated 23.8.2007, contained in Annexure-12 of I.A. No.5616 of 2007 in C.W.J.C.No.12654 of 2005, rusticating and canceling the degrees in PDC & Transcript of B.V. Science & A.H. and PDC & Transcript of M.V. Science with retrospective effect is set aside with a direction to the respondent authorities to issue Migration Certificate to the petitioner who had passed the Post 17 KHAN A.F.R. Graduate in M.V. Science from Patna Veterinary University. As this court is not interfering with the impugned order dated 19.7.2004 canceling the caste certificate of the petitioner, no further benefit would be available to the petitioner on the aforesaid basis. It is directed that if the respondents had spent and incurred any expenditure on the petitioner‟s professional degree/education by extending the benefit of exemption of fee or any form of benefit of concession by treating him as Scheduled Caste candidate, the same would be recoverable. In case, the petitioner does not pay the aforesaid amount within six months from the date of such notice, the respondents may proceed against the petitioner. In the result, these writ applications are allowed in part. (Samarendra Pratap Singh,J)