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2006 DIGILAW 903 (GAU)

Asharam Debbarma v. State of Tripura

2006-09-21

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. Heard Mr. P. Datta, learned Counsel for the petitioner and Mr. P.K. Paul, learned Counsel for the respondents. 2. The short question which has given rise to the present controversy is whether a person with surname 'Barua' can be treated as a member of the Mog community recognized as Schedule Tribe (ST) and appointment/promotion of such a person to a higher post/grade against reserved quota is legally sustainable. 3. The petitioner Sri Asharam Debbarma is an employee in the rank of Upper Division Clerk (UDC) in the Directorate of Employment, Services and Man Power Planning, Agartala West Tripura. In the seniority list published on 19.8.93, the position of the petitioner was at SI. No. 9 and he being a member of the ST community was entitled to be promoted to the next higher post of Accountant/Head Clerk/Statistical Inspector/Sr. Technical Assistant/ Jr. Employment Officer against reserved quota according to the 100-point roster. The 5th respondent Sri Amal Barua was admittedly senior to the petitioner. But the grievance of the petitioner is that though no person with surname 'Barua' can claim to belong to Mog community, the said respondent with 'Barua' surname was wrongly promoted to the post of Statistical Inspector against a vacancy reserved for ST candidate and as a result, though the petitioner as per the 100-point roster was entitled to promotion to the said post, he came to be denied from the said benefit. By means of this writ petition, the petitioner has prayed for quashing and setting aside the impugned order of promotion of the said respondent and to consider the case of the petitioner for promotion to the said post. 4. The State respondents in their counter affidavit contended, inter alia, that persons bearing the surname 'Barua' do not belong to the Mog community and, therefore, they cannot be treated as members of the Scheduled Tribe community. Though the Tribal Welfare Department of the State Government has constantly taken this stand and though the surname 'Barua' does not appear in the Presidential Order recognizing Scheduled Tribe communities, a large number of Baruas including fifth respondent have been given ST certificate by mistaken impression that 'Baruas' belong to the Mog community. Though the Tribal Welfare Department of the State Government has constantly taken this stand and though the surname 'Barua' does not appear in the Presidential Order recognizing Scheduled Tribe communities, a large number of Baruas including fifth respondent have been given ST certificate by mistaken impression that 'Baruas' belong to the Mog community. Referring to Civil Rule No. 56 of 94 which was at the relevant time pending before this Court, the further contention has been made that one Deepayan Singh representing the Baruas in that case claimed that Baruas belong to the Scheduled Tribe community and this Court declined to pass any order of stay for not giving effect to all such ST certificates mistakenly given. In para 8 of the counter affidavit, it has further been stated that the Departmental Promotion Committee (DPC) after scrutinizing all valid records promoted the 5th respondent without indicating anywhere in the counter affidavit whether he was given promotion treating him as a member of the Scheduled Tribe community. 4.1. It is noted from the appointment letter of Amal Barua, the 5th respondent herein, that there is no indication that he was given promotion against the vacancy reserved for Scheduled Tribe community. It seems the certificate obtained by the 5th respondent in his favour that he belongs to ST community had to be acted upon by the concerned authority for giving him promotion against a vacancy reserved for ST community for the reason that this Court in the above noted Civil Rule declined to pass any order of stay sought for by the concerned authority. Be that as it may, this Court in All Tripura Buddhist Association v. State of Tripura and Ors. reported in 2006 1 GLT 66 extensively dealt with the issue whether the members of the 'Barua' community are entitled to be treated as members of the Mog community for the purpose of the benefits available to the ST community and made the following observations appearing in para 19 and 20 which read as follows: 19. reported in 2006 1 GLT 66 extensively dealt with the issue whether the members of the 'Barua' community are entitled to be treated as members of the Mog community for the purpose of the benefits available to the ST community and made the following observations appearing in para 19 and 20 which read as follows: 19. Notwithstanding our observations about the inability of this Court to assume jurisdiction and enter into enquiry to determine whether the term "Magh" indicated in the said Presidential Orders covers Barua community for enabling the latter to claim the status of Scheduled Tribe within the meaning of Article 342 of the Constitution, we nevertheless deem it appropriate to commend to the respondents that they re-examine the claim of the appellant representing the Barua community to be covered by Magh community for their recognition as Scheduled Tribe and, if their claim is found to be genuine, make appropriate recommendation to Parliament for amendment of the Presidential Order to that effect. 20. For the reasons stated in the foregoing, this Writ Appeal is dismissed subject to the observations indicated above. It is made clear that the impugned letter dated 17.7.1987 and the related provisions of Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Service and Posts) Rules, 1992 shall hereafter be read down consistent with the law laid down by the Apex Court in Milind Case (supra) in this regard. To avoid administrative chaos and to prevent unsettling the settled positions resulting from some of the observations made by us elsewhere in this judgment, it is further directed that the members of Barua community, who have been issued Scheduled Tribes Certificate and already availing of the benefits of reservation in terms of such Certificates, shall not be affected by this judgment. Order accordingly. The parties are, however, directed to bear their own costs. 5. It would appear from the above that the controversy whether persons bearing 'Barua' surname belong to Mag community or not and whether they are entitled to any benefit available to the ST community by virtue of the ST certificates obtained by them remains to be a die-hard controversy and it is submitted at the Bar that the matter is still pending in the Apex Court for decision. 6. 6. This writ petition is, therefore, closed with a direction that once this controversy is finally settled, the State respondents shall consider the question of promotion of the 5th respondent assailed herein vis-a-vis promotion of the petitioner who is undoubtedly a member of the ST community. No cost.