ORDER
1. In this writ application, prayer of the petitioner is for quashing the communication dated 20-2-2003 (Annexure-7) of the District Magistrate, Khagaria whereby he has informed the Principal of S.K.M. Medical College, Muzaffarpur that the petitioner who is studying in the said college, happens to be a member of the backward class by birth and the certificate issued by the office of the District Welfare Officer that the petitioner belongs to scheduled caste has been cancelled.
2. Facts lie in a narrow compass, Petitioner happens to be the son of one Chandra Shekhar Prasad Yadav and according to him his father and very cordial relation with Biranchi Das, who had only two daughters and for spiritual gain and continuance of clan, said Biranchi Das expressed his desire to adopt a son with the consent of his wife which was agreed to by the petitioner’s natural father Chandra Shekhar Prasad Yadav because he had more than one sons, in consultation with his wife. As agreed, petitioner was given in adoption following the ritual prescribed by the Hindu Law to Biranchi Das and deed of adoption dated 8-9-1989 was registered. Said Biranchi Das was a member of the scheduled caste (Chamar) and on that basis petitioner claiming himself to be scheduled caste got himself admitted in the MBBS course in the S.K.M. Medical College (for short the College) on a seat reserved for members of the scheduled caste and presently he is studying in the third year of the said course.
3. While the petitioner was pursuing his MBBS course, the Principal of the College sent the caste certificate of the petitioner for verification to the District Magistrate. In response thereto the District Magistrate by his letter dated 20-8-2002 (Annexure-5) addressed to the Principal of the College informed him that the caste certificate given to the petitioner on the basis of adoption by Biranchi Das is illegal. The Principal was further informed that steps are being taken to cancel the caste certificate. A copy of the said communication was also sent to the petitioner directing him to submit his explanation in regard thereto. It is relevant here to state that the District Magistrate in the aforesaid communication had observed that the petitioner is being maintained by his natural father Sri Chandra Shekhar Prasad Yadav. As directed petitioner submitted his reply dated 30th September, 2002 (Annexure-6) and denied the allegation that he is being maintained by his natural father. Petitioner asserted that he is being maintained by first daughter of Biranchi Das namely Phekni Devi and in support thereof an affidavit sworn by her was produced. Petitioner stated that he having been adopted by Biranchi Das, a Chamar by caste, belonging to scheduled caste, he shall also be deemed to a member of the scheduled caste and therefore entitled for all the benefits available to such caste and hence the action of the District Magistrate in cancelling his caste certificate and threatened action of the Principal of the College to cancel his admission is illegal and arbitrary.
4. Mr. Chitranjan Sinha, Senior Advocate appearing on behalf of the petitioner draws my attention to Section 12 of the Hindu Adoptions and Maintenance Act and submits that on adoption the petitioner shall be entitled for the same rights and privileges as a legitimate natural son of a person belonging to the scheduled caste and full effect has to be given to his acquired status on account of adoption for all purposes. Section 12 of the Act reads as follows :–
” 12. Effects of adoption.– A adopted chief shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family :
Provided that –
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
5. There is no serious dispute in regard to the adoption of the petitioner by a member of the scheduled caste but in my opinion same shall not entitle the petitioner the benefits of a scheduled caste candidate for other purposes notwithstanding that the adoption is valid under the provision of the Hindu Adoptions and Maintenance Act. In view of the authoritative pronouncement of the Supreme Court in the case of Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : (AIR 1996 SC 1011) this submission does not require much deliberation. In the said case in paragraph 34 it has been held as follows (at page 1022 of AIR) :–
“In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, (1995 Supp (2) SCC 549 : (1995 AIR SCW 2224) and R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309 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 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 of 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 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.”
(Underlining mine)
6. A Division Bench of this Court had the occasion to consider this question in the case of State of Bihar v. Madhusudan, (2003 (2) PLJR 118) in which it has been held that on being transplanted from an OBC category to that of scheduled caste no benefit shall flow. Paragraphs 5 and 8 of the judgment which are relevant for the purpose are quoted below :–
“5. It is admitted position that the writ petitioner-respondent No. 1 was born in the family of OBC category. The only controversy is as to whether the writ petitioner-respondent No. 1 was adopted by the person belonging to Scheduled Caste Category or not an in case it is found that he was adopted by such person, then by virtue of said adoption he will get benefit of reservation under the law or not.”
“8. This Court in writ jurisdiction will not go into the sufficiency of the material specially when this point was not pressed before the learned single Judge. Even assuming _that he was adopted, even then the case of the writ petitioner-respondent No. 1 will not improve.”
(Underlining mine)
7. The result of the aforesaid discussion leads me to conclude that voluntary mobility of a member of the underserved category to that of reserved category would not entitle the person so moving the benefit of reservation.
8. Mr. Sinha then contends that the petitioner althrough his life studied as a member of the scheduled caste and presently studying in the 3rd year of the five years MBBS course and it shall be inequitable to throw him out in midway from the College. To drive home his submission he has drawn my attention to a judgment of learned single Judge of the Rajasthan High Court in the case of Harphool Singh v. State of Rajasthan, AIR 1981 Rajasthan 8 and my attention has been drawn to the following passage of paragraph 21, which reads as follows :–
“On account of inordinate delay of about four years, during which the petitioner continued his studies, the authorities would be disentitled to revoke the admission of the petitioner, whatever may have been the nature of the petitioner’s representation and whether or not the petitioner did or did not belong to the scheduled caste. The impugned order of cancellation of admission would, therefore, be liable to be quashed on this ground alone.”
9. My attention has also been drawn to a Division Bench judgment of this Court in the case of Amresh Kumar v. Principal, Bhagalpur Medical College, Bhagalpur 1982 BBCJ 302 : (AIR 1982 Patna 122) wherein it has been held as follows :–
“Having admitted the petitioner to the 1st year M.B.B.S. course in the year 1975, and having permitted him to prosecute his studies up to the final year in the year 1979, the respondents could not be permitted in law to cancel the admission of the petitioner (made in the year 1975) in the year 1979, by the impugned order Annexure-12. No fraud can be said to have been committed by the petitioner. It is manifest from the facts stated above, that the respondents acquiesced in the infirmities which the selection letter (paragraph 8(a) contained and allowed the petitioner his admission. No fraud can be said to have been committed by the petitioner in the circumstances.”
10. Mr. Sinha appeals to me that the petitioner be allowed to complete the MBBS course and to balance equity it be directed that the petitioner shall not be entitled in future for any benefits on the basis of adoption in the family of the scheduled caste. He points out that the damage already done to an unknown scheduled caste candidate cannot be undone. He submits that such a course is available in view of the decision of the Supreme Court in the case of Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development ((1994) 6 SCC 241 : (AIR 1995 SC 94) wherein in paragraph 18 it has been observed as follows (at page 106 of AIR) :–
“……Therefore, we uphold the cancellation of the social status as Mahadeo Koli fraudulently obtained by Km Suchita Laxman Patil, but she be allowed to appear for the final year examination of MBBS course. She will not, however, be entitled in future for any benefits on the basis of the fraudulent social status as Mahadeo Koli. However, this direction should not be treated and used as a precedent in future cases to give any similar directions since the same defeats constitutional goals.”
11. I do not find any substance in this submission of the learned counsel and the decisions and the authorities relied on are clearly distinguishable.
12. The Constitution makers who were men of vision and statesmen of the highest order were aware of the historic injustices and inequities afflicting the society, the prejudices and the social discrimination and did not rest content with evolving the framework of the State, but pointed out the goal and methodology for achieving that goal, from which emanated the provisions of reservation for the members of the scheduled caste, scheduled tribe and the backward classes. The question is as to whether a person who attempts to trustrate cherished goal of the makers, can seek protection and pray for continuance of his study till the completion of the course on the plea of equity. In my opinion, the Court shall not accept a plea which will create hindrance in achieving the goal set out by the framers of the Constitution by providing reservation to the scheduled caste and the scheduled tribe. It shall add insult to the injury. Often, as in the present case, the plea of equities or promissory estoppel is put forth for continuance and completion of further course of studies and in my opinion if its acceptance in any way impairs to achieve the constitutional goals set out in the preamble, fundamental rights and the directive principles of the State policy, same cannot be accepted. Persons not entitled for benefit of the scheduled caste claim it in secrecy and the same doe snot come into surface immediately. The delay in the process is inevitable but in my opinion that factor should not be considered relevant to allow the person the benefit to complete the course. In my view such devices not only deprive individual boy of the scheduled caste from getting admission but actually pose a serious danger to the Constitution itself. True it is that the Court cannot, now undo the injury perpetrated on a person belonging to the scheduled caste who could have got admission in place of the petitioner but that itself does not persuade me to permit the petitioner to complete the course. In my opinion it shall amount to giving further favour to an undeserving person who have stolen the seat from a scheduled caste candidate. The frequency with which such claims come before the Court is a clear signal that person like the petitioner deserves no sympathy. I am of the considered view that the plea of estoppel is not germane to the beneficial constitutional concession and opportunities given to the genuine tribes or castes and the Courts shall be circumspect and vary in considering such case. Even in the case of Kumari Madhuri Patil (supra) the Supreme Court is categorical in its observation that such person should be debarred from prosecuting the studies and appearing in the examination. Same reads as follows :–
“…………..The delay in the process is inevitable but that factor should neither be considered to be relevant nor be an aid to complete the course of study. But for the fact that she has completed the entire course except to appear for the final examination, we would have directed to debar her from prosecuting the studies and appearing for the examination……….”
13. In the result, I do not find any merit in the application and it is dismissed accordingly. In the circumstances of the case, I leave the parties to bear their own cost.