-IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.6373 of 2007
Neena Bharti..........................................................................Petitioner
Versus
The State of Jharkhand & Others...........................................Respondents
CORAM : HON'BLE MR.JUSTICE AJIT KUMAR SINHA
For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate &
Mr. Saurav Arun, Advocate
For the Respondents: Mr. A. Allam, Sr. Advocate
-------------------
C.A.V. on : 30.04.2009 Pronounced on : 07.05.2009
ORDER
13/ 07.05.2009
In the instant writ petition the petitioner prays for issuance of an
appropriate writ, order or direction particularly a writ in the nature of certiorari for
quashing of letter dated 22.11.2007 as contained in memo No.4468 (ii), by which
the caste certificate issued on 08.04.1992 by the District Welfare Officer and
13.04.1998 by the Sub-Divisional Officer, Ranchi Sadar, Ranchi has been cancelled
in a most arbitrary manner and that too retrospectively in terms of circular dated
03.01.2007, which also says that this circular will come into existence prospectively
without considering the fact that the caste certificate issued to the petitioner was
issued in terms of the circular dated 03.03.1979, which came into existence after
the Constitution Bench judgment of the Hon’ble Supreme Court as reported in
A.I.R. 1959 SC page 1318.
The petitioner further prays for issuance of an appropriate writ, order or
direction particularly in the nature of certiorari for quashing of show cause dated
27.11.2007 issued under signature of the respondent No.7, by which the petitioner
was asked to reply why she should not be removed from the service of the
University on cancellation of her caste certificate by the District Welfare Officer,
Ranchi and only three days time has been given to the petitioner to file reply to
the said show cause shows the malafide intention on the part of the respondents
towards the petitioner, to whom the caste certificate has been issued genuinely,
legally and within the four corners of law and the said show cause is merely a
formality because it is apparent from the said letter that the said decision has been
taken for removal from service on the ground of caste certificate when in an
earlier opinion sought by them from the learned Advocate General, Jharkhand, her
appointment and the caste certificate was said to be legal by the learned Advocate
General, Jharkhand and inspite of that they are issuing the show cause for the
reasons best known to them.
2
The petitioner has further prayed that during pendency of the instant writ
application, the operation of letters dated 22.11.2007 & 27.11.2007 may kindly be
stayed.
2. The facts, in brief, are set out as under:-
The petitioner was appointed as Training Associate, Plant Protection and
she joined on 03.08.2004 before the Directorate of Extension Education and was
posted at Krishi Vigyan Kendra, Bokaro. Vide letter dated 11.10.2007 the
appointment of the petitioner was kept in abeyance on the ground of objection of
her caste certificate Scheduled Tribe pending enquiry. On 12.10.2007 a show
cause was issued as to why the services of petitioner be not terminated. The case
of petitioner is that a Government circular was issued on 03.03.1979 which speaks
that if a general category person marries with a reserved category, as in the
instant case, who happens to be a scheduled tribe, then the children born out of
said wedlock would be considered as scheduled tribe and this circular was issued
based on a judgment passed by a Constitution Bench of Hon’ble Supreme Court
reported in AIR, 1959 (Supreme Court) page 1318. On the basis of
application preferred by the petitioner the District Welfare Officer upon due
enquiry and in view of the prevailing circular dated 03.03.1979 and the
Constitution Bench judgment passed by the Hon’ble Supreme Court issued caste
certificate on 08.04.1992. The Sub-Divisional Officer based on the aforesaid
certificate also issued the caste certificate. In the instant case the mother of the
petitioner is schedule tribe Oraon and the father is non-tribal and they got married
in the year 1967 and the petitioner was born out of the said wedlock.
3. A show cause notice was issued by the Director, Administration, Birsa
Agricultural University to which a reply was filed on 16.10.2007 clarifying that no
mischief was done and also clarified the legal position. It appears that the matter
was referred to the learned Advocate General to give his opinion on the issue and
the learned Advocate General gave his opinion in favour of the petitioner and
accordingly the office order dated 19.11.2007 issued under the signature of
Director, Administration by which the suspension/appointment was kept in
abeyance was revoked and directions were issued to pay the salary for the period
of suspension as per rule. A memo No.4468 (ii) dated 22.11.2007 was issued
under the signature of the District Welfare Officer, Ranchi vide which the caste
certificate issued to the petitioner on 08.4.1992 and the certificate issued on
13.4.1998 were cancelled relying upon a subsequent judgment of the Hon’ble
Supreme Court reported in 2006 (2) JLJR 186 (SC). The aforesaid order was
issued based on the interpretation of the Hon’ble Supreme Court judgment and the
new circular dated 03.01.2007 by applying the same retrospectively. Thereafter a
show cause was called for vide letter dated 27.11.2007 issued under the signature
of the Director, Administration as to why the petitioner should not be removed
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from service on cancellation of the caste certificate issued on 08.04.1992 and
13.04.1998. The present writ petition has been preferred by the petitioner to
quash annexure-9 by which the caste certificate granted in favour of the petitioner
has been cancelled retrospectively by the State Government as well as for
quashing of annexure-10 by which a show cause has been issued by Birsa
Agriculture University and also for quashing annexure-12 of the amendment
petition vide which the services of the petitioner was terminated with effect from
30.11.2007.
4. Sri Anil Kumar Sinha, learned Senior Counsel appearing for the petitioner
has contended that the petitioner was not given any show cause notice before
cancellation of the caste certificate and the impugned order was against the well
settled cardinal principles of natural justice and thus violative of Article 14 of the
Constitution of India. The second contention raised by the learned senior counsel
is as to whether the second circular dated 3.1.2007 which was made effective
from the date it was introduced could have been applied retrospectively. The third
contention raised by the learned senior counsel for the petitioner is that the entire
enquiry was done behind the back of the petitioner and she was not even afforded
any opportunity to justify her case. The learned senior counsel also submits that a
legal, accrued and or vested right cannot be taken away retrospectively more so,
when the same was upheld based on the earlier circular of 1979. It is further
submitted that the Division Bench order of Hon’ble Supreme Court reported
2006(2) JLJR 186 (SC) (Anjan Kumar Vrs. Union of India) unfortunately
did not even refer to AIR, 1959 SC 1318 which is a Constitution Bench judgment
and was binding and enforceable and in this regard he also submits that the
judgment referred to and relied upon by the respondents (supra) for brining out
the new circular and cancelling the caste certificate followed by termination was
per incuriam since it was a judgment by two Hon’ble Judges and the law in this
regard is well settled. To support his contention he refers to para 74 of 2006 (6)
SCC page 395. It has further been contended that the petitioner has made out a
specific case as to how even under the customs prevailing and the difficulties
faced in the light of the ratio of the judgment she was rightly needed to be
declared as scheduled tribe in the reserved category based on the circular of 1979.
5. Per contra, the learned Senior counsel for the State submits that no case
has been made out as to how the petitioner was prejudiced nor any case is made
out to claim it as customary right as held in all the aforesaid judgments. He also
refers to 2007(4) JCR page 84 a Division Bench order of this Court on the issue
that in such cases the children born from the wedlock of non-tribal and tribal do
not have an automatic right and he further submits that the caste certificate will
be based on the caste of the father and not the mother. He further refers to and
4
relies upon para-15 of the judgment of Hon’ble Supreme Court reported in 2006
(2) JLJR 186 (SC) to support his contention.
6. I have considered the rival submissions and the pleadings and the case law
in this regard. In the instant case the circular dated 3.1.2007 which has been
annexed as annexure-11 at page 69 is based on the aforesaid judgment (supra)
passed in and this circular clearly specifies that in view of the judgment of the
Hon’ble Supreme Court such persons who are born from the wedlock of non-tribal
and tribal couple will not be entitled to be declared as scheduled caste or
scheduled tribe. However, this circular specifically states that it will apply
prospectively. This circular does not declare the issuance of caste certificate based
on the earlier circular No.106 dated 3.3.1979 as illegal nor it has cancelled/recalled
the earlier caste certificate issued as per circular dated 3.3.1979 which was based
on the judgment passed by the Constitution Bench of the Hon’ble Supreme Court.
7. The law in this regard is well settled and the Hon’ble Supreme Court has
time and again held that a legal right which has accrued and vested in a person
based on a statute, rule, circular or policy and has been acted upon cannot be
taken away retrospectively. In the instant case the new circular has been issued
after 28 years which specifically provides that it will apply prospectively and thus
the same cannot be made the basis to take away the legal, accrued and a vested
right retrospectively. A Full Bench of this Court in 2000 (4) PLJR 262,
Maheshwar Prasad Singh Vrs. State of Bihar (FB) has specifically held that
any rule, instruction and or circular which has came into effect subsequently,
cannot be applied retrospectively. This issue is no more res-integra and the
Hon’ble Supreme Court in 2005 (4) SCC page 154 while considering a similar
issue with regard to the eligibility conditions of qualification/experience has
conclusively held that every statute or statutory rule is prospective unless it is
expressly or by necessary implication made to have retrospective effect. Unless
there are words in the statute or in the rules showing the intention to affect
existing rights, the rule must be held to be prospective.
8. It is further well settled that any action which is punitive in nature and
involves civil consequence has to mandatorily comply with the cardinal principles
of natural justice and in absence or non-compliance of the same renders the order
illegal and violative of Article 14 of the Constitution of India. In the instant case
no notice or show cause was given to explain the position before canceling the
caste certificate. The fact remains that the University has no role to play once the
authority under the State Government, competent to issue the caste certificate,
cancelled the same unilaterally and thus the subsequent show cause was of no
consequence.
9. I have also considered the Constitution Bench judgment (supra) which
permitted issuance of such caste certificate in case of a person born from the
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wedlock of non-tribal with a tribal based on which the earlier circular of 3.3.1979
was issued and it was that circular and the Constitution Bench judgment based
upon which the caste certificate was issued and the same could not have been
taken away without affording an opportunity to the petitioner. In the case of V.V.
Giri v. D.S. Dora, reported in AIR 1959 SC 1318, the Constitution Bench of the
Supreme Court, while dealing with the question of the acceptance of a couple in a
tribal community in the event of the tribal marrying a non-tribal and the
recognition thus granted to such couple, observed as under:
“The caste status of a person in the context would
necessarily have to be determined in the light of the
recognition received by him from the members of the
caste into which he seeks an entry.”
10. Undoubtedly, Article 342 of the Constitution of India relating to the subject
of Scheduled Tribes gives the power to the President of India to notify and specify
by public Notification the Tribes and tribal community, which for the purposes of
the Constitution would be deemed to be Scheduled Tribes. It also gives the
Parliament a power to delete or add to such list by making a law to that effect.
Article 342 of the Constitution reads as under:
“Scheduled Tribes-(1) The President may with respect
to any State or Union territory, and where it is a State after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for the
purposes of this Constitution be deemed to be Scheduled
Tribes in relation to that State or Union territory, as the case
may be.
(2) Parliament may by law include in or exclude from
the list of Scheduled Tribes specified in a Notification issued
under Cl.(1) any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied by
any subsequent notification.”
11. In exercise of powers conferred upon him under Article 342(1) of the
Constitution, the President has issued the Scheduled Tribes Order, 1950 and no
addition or deletion from the List of Scheduled Tribes can be made except by the
President himself by issuing a Notification in terms of clause (1) of Article 342 or
by Parliament by making a law to that effect in terms of clause (2) of Article 342.
The impugned Circular and the impugned communication issued by the State
Government and the Central Government respectively do not amount to either
deleting, or adding, or adding or varying or modifying the List of Scheduled Tribes
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at all. What these intend to do is to explain a situation where, in the event of a
tribal woman marrying a non-tribal man, the offsprings born out of such
matrimonial alliance should be accorded the status of the tribe to which the
woman belongs on the condition that the Society of the Tribes to which the
woman belongs has recognized such matrimonial alliance and accepts the couple
into their fold. This explanation does not amount to addition to, or deleting from
the List of Tribes, their groups or their part in any manner. Actually, these
notifications are based on the judgment of the Supreme Court in the case of V.V.
Giri v. D.S. Dora (supra). The observations of the Supreme Court in V.V. Giri
that the caste status of a person would necessarily have to be determined in the
light of the recognition received by him from the members of the caste into which
he seeks an entry, appear to have formed the basis and the foundation stone for
issuance of the aforesaid Notification by the Central Government which was
followed by the State Government subsequently.
12. Thus there is no doubt whatsoever that the impugned Circular or the
impugned Notification do not in any way impinge upon the power of the President
under clause (1), or the power of Parliament under clause (2) of Article 342 of the
Constitution, because primarily these do not deal with any matter relating to
addition to or deletion from the List of Scheduled Tribes. The Notifications merely
can be called as explanatory, or at best clarificatory instruments to cater to an
unforeseen fact situation not conceived in normal circumstances and, therefore, it
can be safely held that they are outside the scope and ambit of Article 342 of the
Constitution of India and on that basis cannot at all be termed as ultra vires the
Constitution.
13. The consistent view of the Courts remains that an enquiry has to be held to
determine as to whether the person concerned is being treated and accepted by
the scheduled tribe community or not. In the supplementary affidavit filed on
5.1.2008 annexure-15 the petitioner has supported the aforesaid requirement by
filing certificate issued by Kendriya Sarna Samiti which has specifically stated that
the petitioner has been accepted by scheduled tribe community and is being
treated as scheduled tribe and is following all the customary rituals of tribe. The
petitioner has also made out a claim by satisfying that she has suffered disability,
socially, economically and educationally before such certificates were issued.
Further separate affidavits have been filed by many such tribals to support the
contention that the father of the petitioner has also been accepted by the
scheduled tribe community and is being treated as S.T. and is following all the
customary rituals of a tribe. There is another factor which even though
recommendatory in nature but demands respect and that is the opinion of the
Advocate General in favour of the petitioner which was obtained by the petitioner
under the Right to Information Act. The petitioner also marked annexure 13, 13/1
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and 14 in the supplementary affidavit enclosing the file noting which was obtained
under the Right to Information Act on 26.4.2008 wherein the Government has
admitted the fault that the circular as contained in annexure 11 to the writ
application was to be applied prospectively, i.e. from 3.1.2007 and it cannot be
applied in any case retrospectively. It also records that no approval, consent or
permission was taken from the Government before cancellation of caste certificate.
14. A Division Bench of this Court in 2001 (3) JCR 169 (Society for
Protection and Enforcement of Adivasi Right & Anr. Vrs. The State &
Ors.) while considering the validity of the notification/circular dated 3rd March,
1979 held at paragraph 11 that it cannot be termed as ultra vires to Article 342 of
the Constitution of India. Thus it can be safely presumed that even the Division
Bench of this Court upheld the circular of 3rd March, 1979 based on which the cast
certificate was issued and it can be safely presumed and said that it was binding
till the new circular of 2007 came into operation. In this very judgment the
learned Division Bench at paragraph 10 considered the judgment of the
Constitution Bench in V.V. Giri case (supra) and Article 342 (1) (2) of the
Constitution and it conclusively held that the circular of 3rd March, 1979 do not
amount to either deleting, or adding, or varying, or modifying the list of Scheduled
Tribes and reiterated the views expressed by the Constitution Bench. It
conclusively held as under:-
“Actually, these notifications are based on the
judgment of the Supreme Court in the case of V.V. Giri v.
D.S. Dora (supra).
15. The learned Sr. counsel for the petitioner has also submitted that the
judgment in Anjan Kumar case is per incuriam. He has referred to and relied upon
para 74 of 2006 (6) SCC page 38. The law in this regard is well settled and the
Hon’ble Supreme Court has time and again held that decisions made by High Court
and or Supreme Court without reference to the relevant decisions of the Supreme
Court are held to be per incuriam decision since the judgment and the law and the
ratio laid down by the Hon’ble Supreme Court is a binding precedent under Article
141 of the Constitution of India.
16. The Hon’ble Supreme Court in 2000 (4) Supreme Court Cases 262
(Govt. of A.P. and another Vrs. B. Satyanarayana Rao (dead) By LRS. and
others) at paragraph 8 held as under:-
“The rule of per incuriam can be applied where a court
omits to consider a binding precedent of the same court or the
superior court rendered on the same issue or where a court
omits to consider any statute while deciding that issue.”
Again in 1991 (4) SCC 139 (State of U.P. v. Synthetics and
Chemicals Ltd.) at paragraph 40 it has been held as under:-
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“40. ‘Incuria’ literally means ‘carelessness’. In practice
per incuriam appears to mean per ignoratium. English courts
have developed this principle in relaxation of the rule of stare
decisis. The ‘quotable in law’ is avoided and ignored if it is
rendered, ‘in ignoratium of a statute or other binding
authority’. (Young v. Bristol Aeroplane Co. Ltd.) Same has
been accepted, approved and adopted by this Court while
interpreting Article 141 of the Constitution which embodies the
doctrine of precedents as a matter of law.”
The same view was reiterated while considering a series of judgments on
the issue by the Hon’ble Supreme Court in 2003 (5) SCC 448 (State of Bihar
Vrs. Kalika Kuer) and ultimately the ratio of the judgments remains that a prior
decision of the Hon’ble Supreme Court on identical facts and law is binding on the
same points of law in a later case more so, when it is by a larger Bench.
17. Considering the aforesaid facts and circumstances of the case, the
impugned order suffers from illegality and is on the face of it arbitrary and
violative of Article 14 of the Constitution of India and in any case the circular dated
3.1.2007 as recorded in the circular itself, will apply with effect from 3.1.2007 and
not retrospectively. In the instant case not even a show cause notice was given
before canceling the caste certificate to explain the legal position and the case
laws and it goes without saying that the ratio of the judgment passed by the
Constitution Bench will prevail over other judgments.
18. Considering the aforesaid facts and circumstances of the case, this writ
petition is allowed and the impugned orders dated 22.11.2007, 27.11.2007 and
30.11.2007 as annexed in Annexure-9, 10 and 12 are hereby quashed with no
order as to cost.
(Ajit Kumar Sinha,J.)
Jharkhand High Court, Ranchi
Dated : 07.05.2009
NKC // N.A.F.R.