CIVIL WRIT JURISDICTION CASE No.8477 of 1996 In the matter of an application under Article 226 of the Constitution of India. ------- Jitendra Ram, son of Sudin Ram, resident of Village and P.O. – Khuthia, P S – Sabour, District – Bhagalpur, Ex- Constable, District Police Force, Munger. ________ Petitioner Versus 1. The State of Bihar. 2. Director General and Inspector General of Police, Bihar, Patna. 3. Inspector General of Police, Eastern Range, Bhagalpur. 4. Deputy Inspector General of Police, Munger Zone, Munger. 5. Superintendent of Police, Munger. 6. Officer-in-Charge, Sabour Police Station, District – Bhagalpur. __________ Respondents For the petitioner : Mr. Kapil deo Singh. For the State : Mr. Rakesh Kumar Sinha, AC to AAG 7. ------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi,J. Petitioner was born to one Sudin Sah who by caste is stated to be Kanu. The date of his birth is not indicated in the writ application. However, from the so-called deed of adoption contained in Annexure-1, petitioner was stated to be about 14 years when adopted. 2. On the basis of the deed of adoption even a cast certificate certifying the petitioner as a Harijan was issued by the Block Development Officer, Sabour on 20th February, 1982. Even the local Mukhiya issued a certification stating that the petitioner was was given away in adoption to one Shri Sudin Ram. In other words, as per the pleadings of the petitioner, petitioner became part and parcel of the household of Sudin Ram and he was entitled to all the benefits which the law provides to an adopted son including the benefits under section 2 12 of the Hindu Adoption and Maintenance Act, 1956 (for short, the Adoption Act). 3. In this background the petitioner came to be appointed on the post of a constable against the quota of a scheduled caste. However, during the course of verification the fact that the petitioner was not born to the scheduled caste parents and that the adoption was a sham, created with the object of deriving the benefit of reservation became an issue against the petitioner. Matter was inquired into. It did emerge that the petitioner had claimed benefit of reservation on the basis of so-called adoption and that he was not a Harijan who could be given benefit of appointment against a reserved post of a scheduled caste. At the relevant time, when Annexure-5 came to be passed by the Superintendent of Police on 9.8.1984, the petitioner was not even a confirmed employee under the respondents. The dispute emerged during the course of verification of the record of the petitioner when he was still undergoing training. In other words, he was still a probationer and not a permanent employee under the State. Said fact has meaning because the benefits which the petitioner may be looking for under Article 311 of the Constitution of India may not be available to him. 4. In the above stated background the Superintendent of Police, Munger decided to remove the petitioner from his post with effect from 19.7.1984. This order is Annexure-5 to the writ application. Thereafter an appeal was filed. The appellate authority rejected the claim of the petitioner vide Annexure-6 and the memorial was also rejected vide Annexure-7. All the three annexures are impugned in the 3 present writ application of whose quashing petitioner wants. 5. Counsel for the petitioner submits that decision to remove the petitioner from the post of a constable is in violation of section 12 of the Adoption Act. It also violates the provisions of Articles 14 and 16 of the Constitution. The order of removal has been passed in breach of principle of natural justice and the fact that the petitioner cannot be debarred from claiming benefit of reservation under the scheduled caste category once it is not disputed that he was given away in adoption rather early in life by his parents to a family belonging to the scheduled caste. 6. Counsel for the petitioner has pressed a few decisions in support of his rightful claim to be retained on the post of a constable, which is required to be taken note of as reliance has been placed by him in this regard. One of the first decision cited at the bar is the case of Chandan Bilasini v. Aftabuddin Khan and others, (1996) 7 SCC 13. In this case the Hon`ble Supreme Court had occasion to deal with the provisions of Sections 12 and 14 (4) of the Adoption Act. Counsel for the petitioner submits that in light of what the Hon`ble Supreme Court had decided while interpreting the law under the Adoption Act, petitioner should be extended all benefits including the benefit of reservation in service. 7. This Court has certain reservation in applying the ratio laid down by the Court in the case of Chandan Bilasini (supra) because the issue is not the effect of adoption but issue is grant of benefit of reservation by virtue of adoption. 4 8. Another decision cited at the bar on behalf of the petitioner is a Division Bench’s decision rendered by Patna High Court in the case of State of Bihar vs. Laltush Kumar, 2001 (3) PLJR 136. In this case the Division Bench had occasion to interpret the beneficial piece of policy in the matter of compassionate appointment. The Court laid down that an adopted son had much of a claim for appointment on compassionate ground as a natural born son. 9. So far as this decision is concerned the issue is not appointment of the petitioner under the compassionate head but whether the petitioner by virtue of adoption becomes a scheduled caste and can claim benefit of reservation as a scheduled caste for the purposes of gaining employment under the State. The same analogy, in the opinion of this Court, may not be available to the case of the present petitioner. 10. Yet another decision of significance is the case of Mrs. Valsamma Paul vs. Cochin University, AIR 1996 SC 1011 where according to the counsel for the petitioner, the said decision supports him because the issue was whether the person born in the family of forward class can claim reservation by virtue of adoption. The fine distinction which the learned counsel for the petitioner wants to make from the ratio of the Supreme Court decision is that this was a decision which took into consideration the effect of adoption of a person born in the forward caste family but given away in adoption to a scheduled caste. 11. Since the petitioner belongs to extremely backward 5 class being a Kanu, the ratio of the decision of the Supreme Court will not apply to the case of the present petitioner because even as a Kanu the petitioner is entitled to benefit of reservation as an OBC. 12. The fine distinction which the learned counsel for the petitioner has tried to make on the ratio laid down by the Hon`ble Supreme Court is not understandable by this Court. Whether the petitioner belongs to a forward caste or an OBC or an EBC makes no difference because what the Supreme Court had laid down is the issue whether a person not born as a scheduled caste can claim the benefit of reservation by virtue of adoption. Para 34 of the said decision sums up the issue and is reproduced for ready reference: 34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, (1995) 3 JT (SC) 563 : (1995 AIR SCW 2224): and R. Chandevarappa v. State of Karnataka, (1995) 7 JT (SC) 93, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15 (3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail 6 the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16 (4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15 (4) and 16(4) of the Constitution.” 13. Counsel for the State has brought to my notice a Division Bench Decision rendered in the case of State of Bihar vs. Madhusudan and others, reported in 2003 (2) PLJR 118. This was a case where the respondent Madhusudan who was a Baniya by caste belonged to OBC category got appointment on the post of a Dy.S.P. by virtue of adoption by scheduled caste family. The Division Bench categorically recorded that such a benefit cannot be extended to the person and his removal from the service was otherwise justified. The Division Bench further relies on the ratio laid down by the Hon`ble Supreme Court in Valsamma Paul (supra). 14. Law is rather clear on this issue. The reason or the historical background under which the Indian Constitution provided for reservation to scheduled caste and scheduled tribe was rooted in the social history of such caste or community. It was in this background that the benefit of reservation was extended under the Indian Constitution when it was adopted and has been continued thereafter. 7 Such an ethos or reasoning had been dealt with by the Hon`ble Supreme Court in detail in Valsamma Paul (supra) and this Court therefore need not delve into all those aspects as it would be repetitive. The issue raised by the petitioner is now well settled. 15. Another aspect which has been raised by the petitioner at the bar is that if the petitioner had been given proper opportunity of hearing then he would have been able to explain the position to the respondents and not providing opportunity has led to serious consequences for him. Since the principle of natural justice has been violated, all the orders require to be interfered with and matter remanded back if not allowed. 16. The writ application was admitted way back in the year 1996. The facts which have been noted in the earlier part of the order are not disputed even by the petitioner at this stage. Therefore, the question is whether the law does provide the benefit which the petitioner is looking for when he got appointment under the State on the post of a constable in the category of a scheduled caste. The Court has already taken note of earlier that a detailed enquiry or departmental proceeding was not required to be held in the case of the petitioner by virtue of the fact that he was not on the permanent roll and that he had not been confirmed as a permanent employee under the State. The petitioner was still a trainee or a probationer and it was during the course of verification of his service record by the local police that these facts had emerged on which the petitioner was asked to respond, even otherwise. Even if for the sake of argument if it is accepted that the 8 petitioner was not given opportunity to fully explain his position, the facts are not in dispute, it is the application of law to the given facts which has relevance. 17. In view of what has been laid down by a Division Bench of this court in the case of State of Bihar vs. Madhusudan (supra) and by the Hon`ble Supreme Court in the case of Valsamma Paul (supra), petitioner has no case for interference with the decision of the respondents against removing him from the post of constable by virtue of the fact that he was adopted by a scheduled caste family. Adoption does not give him a legal right for reservation for appointment under the under the category of a scheduled caste. No case therefore is made out in favour of the petitioner. 18. The writ application is misplaced. It is dismissed but without cost. ( Ajay Kumar Tripathi, J.) Patna High Court: The 9th November, 2010. R K Pathak (NAFR)