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2010 DIGILAW 1093 (CAL)

UNION OF INDIA v. Patel Dhirubhai

2010-08-30

DIPANKAR DATTA, S.K.MUKHERJEE

body2010
JUDGMENT Mukherjee, J. 1. THE respondent-employee, namely, Patel Dhirubhai, was appointed on October 12, 1990 as a Surveyor in the Andaman Public Works Department as a Scheduled Tribe candidate from the mainland, in the appointment letter it was stated that he would be treated as mainland recruit. THE appointment was made when the Andaman and Nicobar Administration had conducted a special drive for recruitment of Surveyors at all India level due to non-availability of eligible candidates in Andaman and Nicobar Islands. 2. THE respondent-employee is a member of Dhodia tribe, which is a specified tribe in relation to the State of Gujarat. When the question of his promotion comes, the respondent-employee claimed promotion against reserved quota for the Scheduled Tribe candidates as he was appointed against the quota meant for the Scheduled Tribes. As the authorities did not consider his case for promotion against the reserved quota, he approached the Central Administrative Tribunal for promotion against Scheduled Tribe quota. 3. THE application was contested by the Administration, inter alia, contending that the said tribe is not a specified tribe in relation to this Union Territory. 4. HOWEVER, the Tribunal by the order impugned allowed the application filed by the applicant and directed the Administration to consider the case of the applicant for promotion against Scheduled Tribe quota. Being aggrieved, the authorities have come up with this petition. The petitioners assail the order of the Tribunal, primarily, on the ground that the employee concerned belongs to a tribe, which is not a specified tribe in relation to this Union Territory and, therefore, he is not entitled to get the benefit of the reserved quota meant for Scheduled Tribes specified in relation to this Union Territory. 5. MR. Ananda Haider, learned Advocate appearing for the employee concerned, submits that one H.M. Lingaraju, who was, also, recruited as a mainland recruit against the reserved quota for Scheduled Tribe candidates along with the employee concerned, was accorded benefits of promotion against the reserved quota. He submits that this employee being similarly circumstanced with the said employee cannot be discriminated against by the Administration. 6. He submits that this employee being similarly circumstanced with the said employee cannot be discriminated against by the Administration. 6. ARTICLE 342 of the Constitution of India provides that 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 purpose of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be (emphasis supplied). Article 366(25) of the Constitution of India provides that Scheduled Tribes means such tribes or part of or groups within such tribes or as are deemed under Article 342 to be Scheduled Tribes for the purpose of the Constitution of India. 7. THE Supreme Court of India in the case of Action Committee, on issue of Caste certificate to Scheduled Castes/Scheduled Tribes v. Union of India reported in (1994)5 Supreme Court Cases 244 holds that on a plain reading of Clauses (1) of the Articles 341 and 342 of the Constitution of India it is manifest that a member of the Scheduled Casts or Scheduled Tribes, who migrates from the State of his origin to another State, cannot be treated as a person belonging to the Scheduled Castes or Scheduled Tribes of that State to which he migrates and, hence, he cannot claim benefit as such in the later State. 8. IN UP Public Service Commission v. Sanjoy Kumar Singh reported in (2003)7 Supreme Court Cases 657 the question arose as to whether a person could claim benefit of reservation as a Scheduled Tribe candidate in public service in the State of UP as a member of Scheduled Tribe though the tribe was not specified to be a Scheduled Tribe in that State. The Supreme Court of India held that such person could hot be treated as a Scheduled Tribe candidate so as to qualify himself to the claim of reservation against the vacancy reserved for Scheduled Tribe in public service in the State of UP. The Supreme Court of India held that such person could hot be treated as a Scheduled Tribe candidate so as to qualify himself to the claim of reservation against the vacancy reserved for Scheduled Tribe in public service in the State of UP. In Sudlaakar Vithal Kumbhare v. State of Maharashtra reported in (2004)9 Supreme Court Cases 481 the Apex Court holds that a Scheduled Tribe notified in one State may not be given the benefits thereof in another State having regard to the plain expression "in relation to that State" in Article 342 of the Constitution of India. 9. IN Subhas Chandra v. Delhi Subordinate Services Selection. Board reported in (2009)15 Supreme Court Cases 458 the Supreme Court of India holds that when reservation for the Scheduled Castes or the Scheduled Tribes had been earmarked, only persons answering the description thereto can be appointed. A member of the Scheduled Castes or Scheduled Tribes notified as such in other States would not come within the purview of the Scheduled Castes or Scheduled Tribes in a State where he has migrated unless the Caste or Tribe is specified as a Scheduled Caste or Tribe in relation to the State where he has migrated. However, in respect of All India Services and Central Civil Services, the members of the Scheduled Tribes and the Scheduled Castes irrespective of their State for which they have been notified are entitled to the benefits thereof. Services in the Union Territory, in view of the constitutional scheme, are essentially different from All India Services although Union Territories are administratively administered by the Central Government. 10. HOWEVER, none of these cases speak of appointment of a person in reserved quota in a State or a Union Territory although such person is not a member of Scheduled Caste or Tribe specified in such State or Union Territory. Therefore, the question crops up for consideration whether a person not belonging to a specified Scheduled Tribe in this Union Territory, but was appointed against the reserved quota meant for Scheduled Tribes to clear backlog, can ask for promotion in the higher post against a reserved quota meant for the Scheduled Tribe community. 11. MOREOVER, a case of discrimination has, also, been made out. 11. MOREOVER, a case of discrimination has, also, been made out. It is stated that similarly circumstanced person was given promotion against reserved quota although his tribe has not yet been specified as Scheduled Tribe in relation to this Union Territory. 12. WE, therefore, set aside the order impugned before us and remit the matter to the Central Administrative Tribunal with request to consider:- (a) As to whether a person, who was appointed against a reserved quota meant for Scheduled Tribe although the tribe was not specified as a Scheduled Tribe in this Union Territory, can claim the benefit of promotion in the higher post against the quota reserved for the Scheduled Tribes ? It is one thing to say that a Scheduled Tribe in one State may not be given the benefits thereof in another State having regard to the expression "in relation to such State" occurring in Article 342 of the Constitution of India and it is another thing to say that where a Scheduled Tribe is appointed in public service in another State or Union Territory although his tribe is not a specified tribe in relation to such State or Union Territory, still he is not entitled to claim promotion against reserved quota. (b) Whether the Administration extended the benefit of reservation while considering the case of promotion of a similarly circumstanced person and, thereby, discriminated against the employee concerned ? We request the Tribunal to decide the matter as expeditiously as possible. Any action taken in the meantime, shall, however, abide by the result of the decision of the Tribunal. We direct the parties to bear their respective costs in this application.