K. Mathivanan, Assistant Executive Engineer, Division 6, Electricity Department, Pondicherry v. Union of India, represented by Government of Pondicherry, through Chief Secretary to Government of Pondicherry, Pondicherry and others
2001-11-20
MALAI SUBRAMANIAN, V.S.SIRPURKAR
body2001
DigiLaw.ai
V.S.Sirpurkar, J.: This judgment will dispose of four writ petitions. They being W.P.Nos.2897 of 1998 and 19310 of 1999, filed by the two petitioners, whose promotion to the post of Assistant Executive Engineer has been ordered to be quashed by the Central Administrative Tribunal (“Tribunal” in short) and W.P.Nos.3086 and 3090 of 1998, filed by the Union of India, through the Chief Secretary to the Union Territory of Pondicherry and there also the Tribunal’s order quashing the promotions of the aforementioned two writ petitioners is assailed. The following factual matrix shall be necessary to understand the controversy involved. 2. K.Mathivanan, writ petitioner in W.P.No.2897 of 1998 and A.Dhanushkody, writ petitioner in W.P.No.19310 of 1999 were at the relevant time working as Assistant Engineers in the Electricity Department of Union Territory of Pondicherry. Both of them admittedly originated from the State of Tamil Nadu. While Mathivanan belongs to “Parayan” community, Dhanushkody belongs to “Pallan” community. Both these castes are admittedly Scheduled Castes within the meaning of Presidential orders as are applicable to the State of Tamil Nadu. They were registered with the employment exchange in the state of Tamil Nadu. On a request from the Pondicherry Government, their names were forwarded to the Pondicherry Government where the posts of Draughtsmen were available and both of them were appointed in the said posts after the interview and after being selected for the same. They were given promotions as Section Officer, Junior Engineer and ultimately to the post of Assistant Engineer. The Electricity Department had to fill up the further promotional post of Assistant Executive Engineer, which is a Group-A post. In all eight posts were available and out of the eight posts two posts were set apart for the Scheduled Castes. After the interviews, along with the others, the writ petitions also came to be promoted as Assistant Executive Engineers. This promotion, which was finalised by G.O.Ms.No.30, dated 23.8.1996, was challenged separately by one Singaravelu and Jayanama, who filed O.A.Nos.424 and 425 of 1997 before the Tribunal.
After the interviews, along with the others, the writ petitions also came to be promoted as Assistant Executive Engineers. This promotion, which was finalised by G.O.Ms.No.30, dated 23.8.1996, was challenged separately by one Singaravelu and Jayanama, who filed O.A.Nos.424 and 425 of 1997 before the Tribunal. The Tribunal by a common order quashed those appointments on promotion taking the view that the petitioners being the migrants from the State of Tamil Nadu to the Union Territory of Pondicherry could not claim any reservation in the matter of promotion or appointment and could not thus steal a march over the original applicants, viz., Singaravelu and Jayaraman, who were also in the realm of selection owing to their seniority and owing to their being branded as “very good” in the matter of selection like the petitioners. The Tribunal has after quashing the promotions of the petitioners, directed the department to convene a Departmental Promotion Committee for considering the promotions. This is how the petitioners have come before us by way of the present petitions. 3. Petitioners case is that admittedly they are belonging to the Scheduled Caste and admittedly their names were called by the Pondicherry Government and that is how they joined the services in Pondicherry in the posts reserved for the Scheduled Castes. Their case is that all through the petitioners are being treated as Scheduled Castes and as such it was not now permissible to hold that they are not the Scheduled Castes. Their further case is that owing to the circulars, correspondence, etc. on the part of the Central Government, the Union Territory of Pondicherry has been treating the migrants belonging to the Scheduled Castes and Tribes to be entitled to the reservation benefits in Pondicherry Government Services. They pointed out that the caste of “Parayan” is also recognised for the purposes of Union Territory of Pondicherry as Scheduled Caste. So also, the case of “Pallan” is also recognised as Scheduled Caste in the union Territory of Pondicherry. They, therefore, submit that the Tribunal should not have written a finding that they could not be treated as belonging to the Scheduled Castes and could not thus claim the benefit of reservation.
So also, the case of “Pallan” is also recognised as Scheduled Caste in the union Territory of Pondicherry. They, therefore, submit that the Tribunal should not have written a finding that they could not be treated as belonging to the Scheduled Castes and could not thus claim the benefit of reservation. When a reference to the Tribunal’s order is made that it is obvious that the Tribunal has relied upon the celebrated decisions in Mari Chandra v. Dean, SGS Medical College, (1990)3 S.C.C. 130 and Action Committee v. Union of India, (1994)5 S.C.C. 244 , the contention is that the law laid down in both the cases was not applicable to the petitioners. 4. The case of the Union Territory of Pondicherry is also more or the less similar and is in tune with the case of the petitioners stated earlier. The Union Territory of Pondicherry also suggests that it has been through out treating the Scheduled Castes and Tribes migrated from other States as entitled to the benefits of reservation, treating them to be belonging to Scheduled Castes and Tribes for the purposes of Pondicherry Government Services. It relied upon certain communications and/or circulars sent from time to time beginning from 1974 right upto 1996. Its further case is that this is an established practice and not to treat the persons like the petitioners as belonging to Scheduled Caste would upset the whole equations and disturb the order which prevails in the matter of State administration. 5. On the other hand, the learned counsel appearing on behalf of the original applicants, Mr.Ajay Kumar, points out that the law is well-settled now by that aforementioned decisions of the Supreme Court. He points out that even thereafter a similar question came up before a Division Bench of this Court M.S. Liberhan, C.J. and E.Padmanabhan, J. in W.P.No.247 of 1999, decided on 21.7.1999 and the Division Bench had taken the view that the migrants of other States belonging to the Scheduled Castes and Tribes could not take the advantage of the reservation in the Union Territory of Pondicherry. He points out that judgment would be binding on us. 6. At the out set, a question arose as to the locus standi of the present respondents to challenge the appointments of the two petitioners on the ground that they did not belong to the Scheduled Caste.
He points out that judgment would be binding on us. 6. At the out set, a question arose as to the locus standi of the present respondents to challenge the appointments of the two petitioners on the ground that they did not belong to the Scheduled Caste. Admittedly, the original applicants are not the Scheduled Castes. The question, therefore, arose as to whether they could challenge the two petitioners who were admittedly promoted against the slot meant for the Scheduled Castes. The argument was that at any rate the aforementioned two persons, who were non-Scheduled Caste persons could not have staked their claim for these posts and therefore, it was immaterial whether the petitioners actually belonged to the Scheduled Caste or not. Mr.Ajay Kumar pointed out that the present respondents would have perfect locus standi suprato challenge these appointments-cum- promotions because the case pleaded was that if in the name of appointing a Scheduled Caste candidate, actually a non-Scheduled Caste was appointed then, the original applicants being senior to such persons had a prior and better chance for promotion as admittedly both the original applicants were senior to the present petitioners. The question of inter se seniority was not disputed before us and indeed, could not be disputed because both the persons have stepped into the feeder post of Assistant Engineer prior to the petitioners’ promotion to that post. It was tried to be feebly suggested that the petitioners were promoted into the feeder category of Assistant Engineer on the basis of their belonging to the Scheduled Caste and the present respondents/ original applicants had not objected at that time to the petitioners being treated as the Scheduled Caste. We are not concerned with such a question at all and indeed, if the statues of the petitioners was not challenged then, it could not stop the original applicants from challenging that status particularly because this time the acknowledgment of that status of the petitioners as the Scheduled Caste would be clearly detrimental to the original applicants. It cannot, therefore, be said that the original applicants did not have or do not have the locus standi. It is pointed out by Mr.Ajay Kumar that it could be seen that there is no availability of the Scheduled Caste candidates being available for promotion, the posts might have gone to the non-Scheduled Caste persons. We are really not on that question.
It is pointed out by Mr.Ajay Kumar that it could be seen that there is no availability of the Scheduled Caste candidates being available for promotion, the posts might have gone to the non-Scheduled Caste persons. We are really not on that question. All that we say is that if in the name of appointing Scheduled Caste persons, some other persons who really could not have claimed that benefit and got appointed then, the original applicants could always approach the Tribunal and say that under such circumstances they were better persons being senior persons to be appointed. We, therefore, hold that the original applicants had the necessary locus standi to challenge the appointments of the petitioners. 7. Now coming back to the question as to whether the petitioners could in reality be said to be entitled to the benefits of reservation and on that basis could be promoted, the whole question will depend upon only on one circumstance as to whether in reality the petitioners are Scheduled Caste person. When we see the judgment of the Tribunal, the learned Members have relied upon the earlier judgment passed by the Tribunal in Sivachanguvelu v. Union of India, O.A.Nos.199 and 214 of 1996, wherein after taking the complete resume of the correspondence, circulars, memos, etc. of the Pondicherry Government as also of the Central Government, the Tribunal has chosen to rely on the two aforementioned judgments of Marri Chandra case, (1990)3 S.C.C. 30 and Action Committee case, (1994)5 S.C.C. 244 . It will be, therefore, our endeavour to see as to whether the Tribunal has correctly relied upon that position. 8. The factual matrix is clear. Petitioners undoubtedly belonged to “Parayan” and “Pallan” castes, which are recognised Scheduled Castes for the State of Tamil Nadu. There is further no doubt that even these two castes, i.e., “Parayan” and “Pallan” also appear as the Scheduled Castes amongst the Scheduled Castes recognised by the President of India for the Union Territory of Pondicherry. There is also no denial that the petitioners themselves have on their own volition joined the services of the Pondicherry Government. It was very strongly urged before us by Mr.Sundar that the petitioners were in fact registered with the employment exchanges in Tamil Nadu.
There is also no denial that the petitioners themselves have on their own volition joined the services of the Pondicherry Government. It was very strongly urged before us by Mr.Sundar that the petitioners were in fact registered with the employment exchanges in Tamil Nadu. They, at no point of time, had any intention to got to Pondicherry nor were they registered with the Pondicherry employment exchange and it was only because of the call sent by the Pondicherry Government to the persons registered with the Government exchanges in Tamil Nadu that they choose to go to Pondicherry and appeared for the interview and jointed the service of the Pondicherry Government. They may be so. It is obvious that nobody compelled them to go to Pondicherry and they went to Pondicherry on their own volition. Thus, admittedly the petitioners have to be called as having as “migrant status” to the Union Territory of Pondicherry. 9. A glance at the judgment of the Apex Court in Action Committee case, (1994)5 S.C.C. 244 would suggest that where a caste, having a particular nomenclature, acknowledged as Scheduled Caste in one State also appears with the same nomenclature in the other State even then, a “migrant”, though he will be able to carry his caste to the State that he is migrating to, cannot claim the benefit of reservation under that caste. The judgment is too clear to be confused. In fact, the judgment in Action Committee case, is an extension of the judgment in Mari Chandra case, (1990)3 S.C.C. 30 . In Mari Chandra case, the set of facts was slightly different. There a person belonging to a particular caste, which was recognised as a Scheduled Caste in the State of Andhra Pradesh was asserting his status as belonging to the Scheduled Caste in the State of Maharashtra where his caste was not recognised as Scheduled Caste. The question, therefore, was limited, as to whether a person belonging to the Scheduled Caste in one State could rightfully claim the advantage of reservation even in the other States. That was clearly negatived in Mari Chandra case.
The question, therefore, was limited, as to whether a person belonging to the Scheduled Caste in one State could rightfully claim the advantage of reservation even in the other States. That was clearly negatived in Mari Chandra case. In Action Committee caste, the Supreme Court, in no uncertain terms, “has crystallized in law that even if the nomenclature of a particular caste, which is recognised as Scheduled Caste in one State, is identical in other States, the persons belonging to that caste, on migration to the other states, cannot claim the benefit of reservation on the ground that the nomenclature of his caste, which is recognised as Scheduled Caste in his original state, is identical with the nomenclature as recognised in the State to which he has migrated to. If this so when, the question must be deemed to have been closed for once and all against the petitioners. Petitioners in this case undoubtedly are” migrants“. They belong to” Parayan: and “Pallan” castes, which are the recognised Scheduled Castes in the State of Tamil Nadu. They area also recognised in the Union Territory of Pondicherry as Scheduled Castes and the petitioners admittedly have migrated from Tamil Nadu to Pondicherry. It will be plain and simple, therefore, that the petitioners would not be able to claim any benefit of reservation on the ground that they belong to Scheduled Caste. 10. We were taken through paragraphs 21 and 23 of the Mari Chandra case, (1990)3 S.C.C. 30 , by Mr.Sundar where the Supreme Court has drawn some gray area in this matter. The Supreme Court there was considering the case of such persons who had migrated “involuntarily” such as the children who migrated along with their parents because of transfer of the parents, etc. The Apex Court in a recommendatory tone has suggested that it could be open for the State Governments to provide some benefits for such involuntary migrants. Relying very heavily on these observations by the Apex Court, Mr.Sundar suggested that the circulars which have been issued by the Pondicherry Government and which circulars have also been supported by the Pondicherry Government in its counter before the Tribunal as well as in the writ petitions is nothing but that kind of exercise. We do not think so.
Relying very heavily on these observations by the Apex Court, Mr.Sundar suggested that the circulars which have been issued by the Pondicherry Government and which circulars have also been supported by the Pondicherry Government in its counter before the Tribunal as well as in the writ petitions is nothing but that kind of exercise. We do not think so. The learned Government Pleader for Pondicherry Government merely reiterated that there were certain circulars and Pondicherry Government was only honouring the correspondence from the Central Government and was indeed treating the migrated Scheduled Caste persons of other States as being entitled to the benefits of reservation. We do not think that we even need to specifically refer to the circulars or as the case may be the letters because of the clear-cut and final pronouncements by the Apex Court of the law in question. Even if there are such circulars, they being contrary to the Supreme Court judgments would be ineffective and otiose. The Tribunal has also referred to those circulars in its order indirectly because of those circulars in its order indirectly because of those circulars and correspondence have been considered by the Tribunal in its earlier orders in Sivachanguvelu v. Union of India, O.A.Nos.199 and 214 of 1996, decided on 5.11.1996. We are in complete agreement with the Tribunal. 11. A last desperate argument was raised that culturally, geographically and socially there could be no different between “Parayans” and “Pallans” of Tamil Nadu and “Parayans” and “Pallans” of Tamil Nadu had no different tracings and were identically placed vis-a-vis, their counterparts in Pondicherry. Therefore, it should be held by this Court that “Parayan” and “Pallan” in Tamil Nadu could reap the benefits of reservation on account of their belonging to the Scheduled Caste as recognised in the Union Territory of Pondicherry also. We are unable to agree with the submission. 12. In the first place, the statement that “Parayans and Pallans” in Tamil Nadu are identical with the “Parayans and Pallans” in the Union of Territory of Pondicherry cannot be accepted as a gospel truth and would need proof and evidence.
We are unable to agree with the submission. 12. In the first place, the statement that “Parayans and Pallans” in Tamil Nadu are identical with the “Parayans and Pallans” in the Union of Territory of Pondicherry cannot be accepted as a gospel truth and would need proof and evidence. We will have to first find as a matter of fact that the “Parayans and Pallans” in Tamil Nadu have absolutely nothing different than their counterparts in the Pondicherry and precisely this exercise is completely barred in the celebrated judgment of the Apex Court in State of Maharashtra v. Milind and others, (2000)1 S.C.C. 4 be that as it may, even under the law laid down by the Supreme Court in Action Committee case, (1994)5 S.C.C. 244 , there would be no scope for this and rigour of the judgments would apply with full force to the facts of the present case also. 13. In view of the above, it would not be possible for us to take any different view than the one which has been taken by the Tribunal. All the writ petitions have no merits and they must be dismissed and they are accordingly ordered to be dismissed but without any orders as to the costs. Connected W.M.P.Nos.4316, 4592, 4596 and 4597 of 1998, 28296 and 28297 of 1999 and 21168 of 2000 are closed.