IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10865 of 2006 GULAB DAS S/O LATE BHUNESHWAR DAS @ BHUNES KANT, R/O VILL- SUKHSHENA PS- BARAHARA KOTHI DISTT- PURNEA-----------------PETITIONER Versus 1. THE STATE OF BIHAR 2. BIHAR MILIARY POLICE 7 THROUGH ITS COMMANDENT KATIHAR 3. COMMANDANT, BMP-7, KATIHAR 4. ASSTT. COMMANDANT BMP-7, KATIHAR-----RESPONDENTS ----------- For the petitioner: Mr. Tej Bahadur Singh, Sr.Advocate M/s Gyan Shankar and B.S. Pandey Advocates For the State: Mr. Anish Kumar, AC to SC-18 --------- 2 13.7.2010 Heard learned counsel for the parties. Petitioner who was initially appointed as a constable went on to the level of Hawildar in the Bihar Military Police. He came to be dismissed from service with effect from 18.6.2003 for the reasons that he had gained employment with the respondent by producing a fake caste certificate of scheduled caste. Petitioner admittedly by birth is kewat by caste but his contention is that he was given away in adoption at a very young age to a family belonging to schedule caste and he grew up thinking himself to be a scheduled caste. Petitioner was also tried in a criminal court for the same set of charges and the learned Special Judge, S.C.S.T. (Prevention of Atrocities) Act, Katihar acquitted the petitioner honourably. On question of his having produced fake certificate for gaining employment, learned Senior counsel for the petitioner submits that exoneration by a court even if it is criminal court should entitle the petitioner to be put back in service and the order - 2 - of termination must go. Trial by the criminal court is yet another issue. The same could have been taken into consideration while deciding the present case provided the criminal court had not committed error of law. The reason why this Court cannot extend benefit of the principle because of the error committed by the trial court in holding that the petitioner was a scheduled caste. That declaration is based on the interpretation of Section 12 of Hindu Adoption and Maintenance Act. The court below has dealt in length the aspect and application of Section 12 and has declared that once a child was taken in adoption, for every purpose and contents he became part and parcel of the family. The declaration of law by the trial court is not correct in the manner that the benefit of reservation cannot be conferred upon an individual merely because he has been given away in adoption. Since the petitioner was not born into scheduled caste family but only given away in adoption the Hon’ble Supreme Court on many an occasions have categorically held that the benefit of caste of the adoptive parents does not accrue on that basis. One of the decisions in this regard is the case of Valsamma Paul (Mrs) vrs. Cochin university & others (1996) 3 SCC 545. Para 34 of the said decision is reproduced and quoted herein below for ready reference: Para 34: In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde and R. Chandevarappa v. State of Karnataka 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 - 3 - 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 have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail 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. If the law lay down by the Apex Court still holds the field then the declaration by a criminal court in favour of the petitioner is of no avail. The finding of the criminal court cannot form the foundation for the petitioner to be reinstated in service. The finding in the department enquiry is that the petitioner had furnished a false caste certificate to gain employment under the respondents and even got promotion to the next post in that category. The decision of the respondent to dismiss the petitioner from service on the basis of gaining employment on a false caste certificate therefore cannot be faulted with specially in view of the lack of evidence even before the criminal court as to date of adoption. There is no evidence when the petitioner was given away in adoption to the so called adoptive parents. No - 4 - interference is warranted with the order of dismissal. However one submission made by learned Senior counsel for the petitioner does merit consideration. Submission of learned Senior counsel is that the order of dismissal passed against the petitioner is dated 5.9.2004 but the order of dismissal is effected from the date of suspension, which has been passed on 18.6.2003. Dismissal from a retrospective date cannot be permitted as it is in violation of the settled principles in this regard. Learned counsel for the petitioner relies on a decision rendered in the case of Dr. Ashok Kumar Sinha vrs. Patna University and ors reported in 1998 (2) PLJR 280. Emphasis is on paragraph 6 of the said decision. Paragraph 6 has been reproduced and quoted herein below for ready reference: Para 6: “In so far as the first question is concerned, learned counsel for the University has fairly conceded that the order of termination cannot be given retrospective effect. Learned counsel further submitted that even though the order cannot be given retrospective effect, the impugned order is valid prospectively and the order is capable of severance. She further elaborated her contention by staying that the retrospective part of the order may be quashed but since the impugned order is capable of severance, its prospective operation must be held to be good in law. Therefore, according to her the impugned order operates validly from the date of its issue i.e. 13.8.1996. In support of this contention learned counsel for the said University has placed reliance on the judgment of the Supreme Court in the case of R. Jeevaratnam vs. State of Madras reported in A.I.R. 1966 S.C. page 951. This Court on perusal of the ratio in the case of Jeevaratnam (supra) accepts the contention raised by the learned counsel for the said University that the impugned order of termination is capable of severance and being so served the Court may strike - 5 - down its retrospective operation but may uphold the order prospectively from the date of its issue, if the order is otherwise valid.” In view of above the order of termination cannot be given retrospective effect and it is to be prospective by its content and nature. The law being what it is on the subject, the impugned annexure-1 is interfered with to the extent that the order of dismissal will relate to the date of order which is 5.9.2004 and not relate back from the date of suspension which is 18.6.2003. That part of the order stands quashed. It goes without saying that the benefit accruing from the order with regard to retrospectivity shall accrue to the petitioner. This writ application is allowed to the extent indicated above. RPS (Ajay Kumar Tripathi,J.)