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2011 DIGILAW 586 (GAU)

Premtosh Barua v. State of Tripura

2011-07-13

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. C.S. Sinha, learned Counsel appearing for the Petitioner, and Mr. S. Chakraborty, learned Addl. Govt. Advocate, representing the State Respondent. 2. By filing this writ petition, the Petitioner has challenged the office Order dated 26.03.2001 (Annexure-8 to the writ petition), issued by the Engineer-in-Chief, PWD, Government of Tripura (Respondent No. 2 herein), by which the order of promotion, from the post of UDC to Head Clerk in the Scheduled Tribe category, dated 27.02.2001(Annexure-4 to the writ petition), issued in respect of the Petitioner, was cancelled on the ground that the Petitioner does not belong to Schedule Tribe Community as per the Scheduled Castes & Scheduled Tribes Orders (Amended) Act, 1976 (hereinafter referred in short, as the 1976 Act), read with the comments on paras 11 to 14 of Civil Rule No. 380/96. 3. The pleaded case of the Petitioner is that the Petitioner was initially appointed in the Public Works Department, Government of Tripura, on 07.02.1981 as Lower Division Clerk (LDC) in the category of Scheduled Tribe (ST) 'Mog' vide office order No. F.6(94)-PWD(E)/80 dated 28.01.1981. Thereafter, the Petitioner got promotion to the post of Upper Division Clerk (UDC) on 09.04.1987 as Scheduled Tribe candidate, vide office order No. F.6(93)-PWD(E-1)/80 dated 02.04.1987, and thereafter, again he got promotion to the post of Head Clerk vide Notification No. 6(85)-PWD(E)/80(P-IV) dated 27.02.2001 as Scheduled Tribe candidate. On being appointed as Head Clerk, he was discharging his duties as usually. However, on the ground of family affairs, he had to avail on leave for seventeen days, and thereafter, he made prayer for extension of his leave, on the ground of his wife's serious illness. During his period of leave, the impugned office Order dated 26.03.2001, was issued by the Respondent authority, whereby his promotion to the post of Head Clerk was cancelled by stating that 'Barua Community' does not belong to Scheduled Caste Community as per the 1976 Act. The relevant extract of the order dated 26.03.2001 issued by the concerned Department reads as follows: No.F.6(85)-PWD(E)/80(P-Iv) Government of Tripura Public Works Department Dated, Agartala, the 26th March, 2001 OFFICE ORDER Order of promotion in respect of Shri Premtosh Barua, U.D. Clerk attached to Southern Division No. I, Udaipur to the post of Head clerk as made under sl. The relevant extract of the order dated 26.03.2001 issued by the concerned Department reads as follows: No.F.6(85)-PWD(E)/80(P-Iv) Government of Tripura Public Works Department Dated, Agartala, the 26th March, 2001 OFFICE ORDER Order of promotion in respect of Shri Premtosh Barua, U.D. Clerk attached to Southern Division No. I, Udaipur to the post of Head clerk as made under sl. No. 12 of this office order No. F.6(85)-PWD(E)/80(P-IV) dated 27.2.2001 in the S.T. quota is hereby cancelled on the ground that the "Barua Community" is not belonged to ST Community as per the Scheduled castes and scheduled tribes orders(Amended) Act, 1976, read with the comments on paras 11 to 14 of civil rule No. 380/96. In the interest of public service, Shri Premtosh Barua, U.D. Clerk may continue to remain posted in the existing place of posting against vacancy until further order. Sd/- illegible (S. NAG) Engineer-in-Chief, PWD Agartala, Tripura 4. Learned Counsel for the Petitioner has submitted that the Petitioner was issued with a Scheduled Tribes certificate by the Sub-Divisional Officer, Sonamura, West Tripura, certifying him to be a member of Scheduled Tribe Community, belonging to 'Mog Community', which is the recognized Scheduled Tribes community in the State of Tripura. 5. As a matter of fact, it is not disputed by the State Respondents that 'Mog Community' is a Scheduled Tribes community, recognized in the State of Tripura in terms of the 1976 Act. 6. Learned Counsel for the Petitioner further pointed out that in Civil Rule 61 of 1998, a Single Bench of this Court, while disposing of the writ petition filed by the sister of the Petitioner, claiming herself to be a member of the Scheduled Tribes Community (Mog), directed the Respondent Department to appoint the sister of the Petitioner in the S.T. quota, in terms of the certificate issued by the Sub-Divisional Officer, Sonamura. The operative part of the order dated 10.08.2000, passed by this Court in Civil Rule No. 61 of 1998, reads as follows: 3. The Petitioner is a graduate in Bio-Science. She was issued the offer of appointment by the Director of School Education, Government of Tripura (Respondent No. 2) vide memo No. F.1(1-97)-DSE/96 dated 2.3.96 to the post of graduate teacher at a consolidated pay of Rs. 13000 per month. The Petitioner communicated her acceptance and was waiting for appointment letter and posting. The Petitioner is a graduate in Bio-Science. She was issued the offer of appointment by the Director of School Education, Government of Tripura (Respondent No. 2) vide memo No. F.1(1-97)-DSE/96 dated 2.3.96 to the post of graduate teacher at a consolidated pay of Rs. 13000 per month. The Petitioner communicated her acceptance and was waiting for appointment letter and posting. As there was an inordinate delay, the Petitioner issued a demand notice dated 25.8.97 and thereafter having failed to redress her grievance, approached this Court for issuance of a writ as indicated above. 4. The objection made by the State in their affidavit-in-opposition and as highlighted by the learned Counsel for the State with regard to her status as Scheduled Tribe (ST) as libate. The matter was referred to the Sub-Divisional Officer (SDO), Sonamura for enquiry. Shri Ghosh, learned Counsel for the State Respondents has submitted today before the court a copy of the report given by the SDO, Sonamura wherein it is stated that the writ Petitioner belongs to of community and the certificate issued to her on this regard is genuine. In view of this position, there remains no bar on the part of the Respondents to issue the ad interim order as a graduate teacher in the post in favour of the writ Petitioner as mentioned above. 5. In the result, the writ petition is allowed, the Respondent No. 2, namely, the Director of School education is hereby directed to issue appointment order immediately, preferably within a period of one month from today. No costs. A copy of the order be furnished to the learned Counsel for the State Respondents Mr. A. Ghosh. 7. Learned Counsel for the Petitioner has pointed out that a valid Scheduled Tribe certificate was issued to the Petitioner by holding him to be a member of 'Mog' community, which is a notified Scheduled Tribes community in the State of Tripura. Therefore, unless the said Scheduled Tribes certificate, in question, issued to the Petitioner by the appropriate authority of the Government, after due verification, is either cancelled or recalled, the status of the Petitioner as a member of the Scheduled Tribes community, cannot be cancelled by the impugned office order dated 26.03.2001 issued by the Respondent No. 2, the Engineer-in-Chief, PWD, Government of Tripura. Learned Counsel for the Petitioner pointed out that the Engineer-in-Chief, Respondent No. 2, does not have the authority or power in terms of the rule to cancel or recall the ST certificate issued to the Petitioner in accordance with the existing rules. 8. In reply to the above submission, learned State counsel, referring to a common judgment of this Court in C.R. No. 56 of 1994 All Tripura Buddhist Association (Barua Mog Community) v. State of Tripura and Ors. and CR No. 380 of 1996 and consequent writ appeal, W.A. No. 123 of 2001 filed by the All Tripura Buddhist Association, has submitted that the Petitioner, being a member of 'Barua Community' cannot be treated to be a member of Scheduled Tribes (Mog Community) in the State of Tripura. 9. On perusal of the order passed by this Court in aforenoted, it appears that the 'All Tripura Buddhist Association (Barua Mog Community), as Petitioners, claimed Scheduled Tribe status to the Baruas community, residing in the State of Tripura, as Scheduled Tribe 'Mog Community'. The prayer of the Association was rejected in the writ petition. Consequently, taking cue from the above observation made in CR No. 56 of 1994 and CR No. 380 of 1996, the status of the Petitioner as Scheduled Tribes (Mog Community) was not accepted by the State Government, and accordingly, the Petitioner was denied of his promotional position in the office by the Respondent No. 2 by issuing the impugned office order. 10. As a matter of fact, the Petitioner was issued with a valid ST certificate by the authority concerned, empowered to issue such ST certificates. Such certificate was issued by holding the Petitioner to be a member of Scheduled Tribe (Mog) community, therefore, unless the said Scheduled Tribe certificate is recalled or cancelled by the appropriate authority in accordance with law, the Respondent No. 2, the Engineer-in-Chief, PWD, could not have suo moto cancelled such Schedule Tribe certificate. As a matter of fact, by referring to the observation made in a different context in another writ petition, without even issuing any notice and/or without making any enquiry whatsoever, individual valid Scheduled Tribe certificate issued after due verification cannot be cancelled. The cancellation of the Scheduled Tribes status of the Petitioner, by issuing the impugned office order is apparently illegal, discriminatory and unsustainable in law. 11. The cancellation of the Scheduled Tribes status of the Petitioner, by issuing the impugned office order is apparently illegal, discriminatory and unsustainable in law. 11. Apparently, the Petitioner has been selected and appointed on the basis of the Scheduled Tribe certificate issued to him by the concerned Department of the Government after due verification, by holding him to be a member of Scheduled Tribes (Mog Community). Though the Petitioner styles his name as 'Premtosh Barua', his status as Scheduled Tribe candidate cannot be cancelled only for the reason that the prayer made by the 'All Tripura Buddhist Association' for including the 'Barua Community' as Scheduled Tribes was disallowed by writ Court in CR No. 56 of 1994 and CR No. 380 of 1996. 12. In view of the above discussions and observations, this Court is of the considered view that the impugned office order dated 26.03.2001, passed by the Respondent Department is illegal, discriminatory and not sustainable in law. Consequently, this writ petition is allowed and the impugned office order dated 26.03.2001 issued by the Engineer-in-Chief, PWD (Respondent No. 2) is hereby quashed. The Respondent authorities are directed to allow the Petitioner to continue in his earlier post as Head Clerk with all consequential benefits. No costs. Petition allowed.