Disposed

Bharti Choupal v. The State Of Bihar and Ors.

Patna HC11 Apr 2014CWJC/100/2013

Case brief

AI extract

What is this about?

The High Court held that the caste status determination pending before the dispute was best considered by the State Election Commission. The Court permitted parties to raise submissions before the Commission and vacated a prior stay on the impugned order, disposing of the writ application with no specific relief granted against the District Magistrate's order at that stage.

What did the court decide?

The writ application was disposed of; parties permitted to raise issues before the Respondent Commission; interim order vacated.

Bharti Choupal Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.100 of 2013

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====================================================== Bharti Choupal Wife Of Sukhdeo Chaupal Resident Of Village Kusmaul, P.O. Kusmaul, P.S. Bhargama, District Araria .... .... Petitioner/s Versus 1. The State Of Bihar, Through Secretary, Panchayati Raj, Government Of Bihar, Patna 2. The State Election Commission, Bihar, Patna Through Its Secretary, Sone Bhawan, Birchand Patel Path, Patna 3. The District Magistrate, Araria 4. Rani Maina Wife Of Arun Sardar Resident Of Village Pattipran Path, P.S. Bhargama, District Araria .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sanjay Kumar, Mr. Pawan Kumar Mr. Kamlendra Pd. Singh For the private respondent No.4 Mr. Ajay Kr. Thakur Mr. Imteyaz Ahmad Nilesh Kumar For the State Mr. Subhash Pd. Singh, G.A.7 Mr. Dilip Kumar, A.C. to G.A.7 For the Commission Mr. Amit Shrivastava Mr. Girish Pandey ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 6 11-04-2014 Heard Mr. Sanjay Kumar for the petitioner and Mr. Girish Pandey for the State Election Commission (for short „the Commission‟). Counter affidavit and rejoinder thereto have been filed. Present writ application has been preferred seeking appropriate writ/order/direction to quash the order dated 25.06.2012 (Annexure-1), passed by the Respondent District

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Magistrate, Araria, whereby in the light of the direction issued by the Respondent Commission the District Magistrate held an enquiry and found that the petitioner who was holding the cast certificate of Chaupal (SC) was fit to be cancelled. The petitioner was held „Khatwe‟ by caste categorized in extremely backward class (EBC). By the said order, the cast certificate (Annexure-3) issued by the Respondent Circle Officer in favour of the petitioner was directed to be cancelled.

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The background facts of the case may briefly be noted.

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The petitioner as well as respondent no.4 filed their nomination papers for contesting the election to the post of Mukhiya of Kusmaul no.1 Gram Panchayat within Bhargama block in the district of Araria. The said post was reserved for the scheduled caste (woman) category. The petitioner claiming herself to be „Chaupal‟ by caste belonging to scheduled caste category (SC), filed her nomination papers enclosing therewith the caste certificate issued by the Circle Officer. On scrutiny, the nomination papers of the petitioner was found valid, although an objection was raised against such nomination by one Ranju Devi. The election for the post of Mukhiya was held on 27.04.2011 and the result thereof was declared on 18.05.2011. The petitioner having polled the highest number of valid votes was declared

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elected to the post in question. Respondent no.4 filed a complaint before the Respondent Commission giving rise to Case No.92 of 2011 alleging therein that the petitioner was ineligible to contest the election for the post in question which was reserved for the candidate belonging to scheduled caste category (woman). The petitioner belonged to „Khatwe‟ caste which was a caste under the EBC. On notice, the petitioner appeared and contested the case of respondent no.4. The Respondent Commission referred the matter to the respondent District Magistrate to hold inquiry and determine the caste status of the petitioner. In the light of the said order of the respondent Commission, the District Magistrate held the enquiry and concluded that the petitioner actually belonged to „Khatwe‟ caste (EBC) and not „Chaupal‟ caste (SC). Having held so, the District Magistrate further directed for cancellation of the caste certificate (Annexure-3) issued in favour of the petitioner declaring her caste status as „Chaupal‟(SC). Before the matter in the light of the said report could be considered by the respondent Commission in the pending proceeding, the petitioner filed the present writ application challenging the legality/pregnability of the order (Annexure-1) passed by the respondent District Magistrate declaring her caste status as „Khatwe‟(EBC). Be it noted that by an interim order dated 10.01.2013 passed in the

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present proceeding, the operation of the impugned order dated 25.06.2012 (Annexure-1) passed by the District Magistrate, Araria was stayed. The result being that the respondent Commission did not proceed further with the consideration and disposal thereof.

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Mr. Sanjay Kumar, learned counsel for the petitioner has submitted that the District Magistrate acted in breach of the order passed by the Hon‟ble Apex Court in the case of Daya Ram vs. Sudhir Batham since reported in [(2012) 1 SCC 333]. He draws attention of the Court to paragraph 7 of the report whereunder various directions were issued by the Apex Court. The petitioner has, in particular, placed reliance on direction no.4, 12, and 14 thereof. It is apposite to extract paragraph 7 of the said order in extenso which reads thus:-

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“7. This Court was therefore of the view that the caste certificates issued should be scrutinized with utmost expedition and promptitude. To streamline the procedure for the issuance of caste (social status) certificates, their scrutiny and approval, this issued the fifteen directions relevant portion of which are extracted below (Mathuri Patil case, SCC 254-57, para 13):-

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(1). The application for grant of social status certificate shall be made to the Revenue

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Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the officer, taluk or mandal level.

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(2) The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal communities, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

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(3) Application for verification of the caste certificate by the Scrutiny Officers, namely (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be and (III) in the case of scheduled castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimated knowledge in identifying the tribes, tribal communities, parts of groups of tribes or tribal communities.

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(5) Each Directorate should constitute a vigilance cell consisting of Senior Deputy

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Superintendent of Police in overall charge and such number of Police Inspector to investigate into the social status claim…

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(6) The Director concerned, on receipt of the report from the Vigilance Officer if he found the claim for social status to be „not genuine‟ or „doubtful‟ or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the Vigilance Officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed…

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After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

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(7) In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.

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(8) Notice contemplated in para 6 should be issued to the parents/guardian also in case

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candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.

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(9) The inquiry should be completed as expeditiously as possible preferably by day-today proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.

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(10) In case of any delay in finalizing the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject the result of the inquiry by the Scrutiny Committee.

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(11) The order passed by the Committee

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shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

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(12) No suit or other proceedings before any other authority should lie.

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(13) The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal should lie against that order to the Division Bench but subject to special leave under Article 136.

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(14) In case, the certificate objected or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

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(15) As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgment due with a

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request to cancel the admission or the appointment. The principal, etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.”

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It has thus been submitted that the District Magistrate could not have proceeded to pass the order dated 25.06.2013 in view of the aforesaid directions of the Hon‟ble Apex Court . He has also in this regard placed reliance on another order passed by the Hon‟ble Supreme Court in the case of Madhuri Patil vs. the Additional Commissioner, Tribal Development & Ors. (1994(6) SCC 241). In the light of the order passed in Madhuri Patil(supra), it is submitted, the State Government has already constituted an Screening Committee at the state level vide resolution contained in letter bearing memo no.1567 dated 05.02.2014 issued in the department of General Administration. It has next been contended that the State Government later came out with an order/notification (although subsequent to the order impugned) whereby the caste „Khatwe‟ stands deleted from the category of the caste(s) falling under EBC and notified as the

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caste under SC category. There can be no dispute that, as of today, the petitioner is „Chaupal‟ by caste which falls in the scheduled caste category.

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Mr. Pandey counsel for the Commission, conversely relying on 2014(1) PLJR 562 (Md. Alamgir vs. The State of Bihar & Ors.) contended that reliance placed on Madhuri Patil(supra) is inappropriate. This Court will profitably extract paragraph 4 of the said report on which reliance has been placed which read

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thus:-

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Learned counsel for the petitioner submits that Sections 137, 138(2) and 139 of the Bihar Panchayat Raj Act, 2006 are special provisions laying down that no election of any Panchayat shall be called in question except by an election petition presented to an election authority under the Act and further specifically mentioning as one of the grounds for declaring the election of the returned candidate as void as that on the date of his election a returned candidate was not qualified or was disqualified to be chosen as a member under the Act, which according to learned counsel read with the proviso to Section 136(2) which lays down that the State Election Commission shall not be entitled to entertain such complaint which is subject matter of purely election dispute, would override Section 136(2) under which the question of disqualification is to be referred for decision of the State Election Commissioner. It is urged by learned counsel that Section 137 of the Act is a special provision to set aside the election and it would prevail over any general provision like Section 136 which being a general provision must accordingly be read down. In support of the same learned counsel relies upon a decision of the Supreme Court in the case of J.K.Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh and others : AIR 1961 SC 1170, in

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paragraphs 9 & 10 of which it has been held as follows :

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“9. There will be complete harmony however if we hold instead that Cl.5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206, 6 th Edition) Romilly, M.R., mentioned the rule thus :- “The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.”

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The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon, 1858 28 LJ Ch 598, Churchill v. Crease, (1828) 5 Bind 177, United States v. Chase, (1889) 135 US 255 and Carroll v. Greenwich Ins. Co., (1905) 199 U.S. 401. 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails

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over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that Cl. 5(a) has no application in a case where the specific provisions of Cl. 23 are applicable."

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It has next been urged that in the case of Sushila Devi vs. State of Bihar(LPA No.1158 of 2012) a division bench of this Court upheld the jurisdiction of the District Magistrate to decide the caste status and the jurisdiction of the respondent Commission to decide the caste status of the candidate being an eligibility to contest the election.

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In reply, Mr. Kumar submitted that in none of the aforesaid two judgments on which reliance has been placed by the respondent the order passed by the Hon‟ble Apex Court in the aforesaid case was considered. He further submitted that the jurisdiction of the Commission to decide the caste status of the candidate is not in dispute. The dispute is with regard to the process through which such status can be ascertained/determined. In his submission, the caste status can be decided in the light of the judgment of the Apex Court only by the Screening Committee constituted by the State which is functional in the State.

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Having heard the parties this much is evident that the matter is still pending consideration before the respondent

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Commission where the parties can raise the issue(s) as raised herein for consideration and disposal in accordance with law. The Tribunal constituted under the Act is obliged to take into account the submission of the parties either questioning or supporting the report of the respondent District Magistrate. Before the pending matter could be heard by the respondent Commission the lis was carried before this Court by the petitioner and by virtue of the interim order the Commission was disabled to proceed to consider the rival submission(s) of the parties and dispose of the case in accordance with law. I have purposely noticed the rival submission(s) advanced by the parties in support or against the order passed by the District Magistrate since the finding/report of the District Magistrate is yet to be considered and get approval of the respondent Commission in the light of the submission(s) to be advanced on behalf of the both the parties.

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This court would, therefore, permit the petitioner as well as respondent no.4 to raise all the issues as raised herein before the respondent Commission for consideration and adjudication. I am sure once these submissions are raised the respondent Commission shall take into account the same while disposing of the pending application/complaint in accordance with law expeditiously preferably within three months from the date of

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appearance of the petitioner as well as respondent no.4 before the respondent Commission. The petitioner as well as the respondent no.4 shall produce a copy of the present order before the respondent Commission within four weeks enabling the Commission to proceed and dispose of the case.

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The interim order dated 10.01.2013 stands vacated.

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The writ application is disposed of.

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(Kishore Kumar Mandal, J)

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HR/-

Bharti Choupal v. The State Of Bihar and Ors.

Case brief

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Bharti Choupal v. The State Of Bihar and Ors.

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