High Court
Case Details
WP(C) 4924/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Mr. M Nath, learned counsel appearing for the petitioner. The Assam State Co-operative Housing Finance Ltd. (hereinafter referred to as ’the HOUSEFED’) au thorities (respondent Nos.4-6) are represented by Advocate Mr. B Chakraborty. Th e Govt. Advocate Ms. K Devi appears for the State respondent Nos.1-3. 2. The petitioner is serving as a Supervisor in the HOUSEFED since 11.11.19 94 and although multiple reliefs are sought in the writ petition, in course of h earing, the only prayer made is for consideration of promotion of the petitioner , to the post of L.D.A. Representing the petitioner, Mr. M Nath, learned counsel refers to the d 3. irection given on 28.2.2005 (Annexure-9) in the WP(C) No.9167/2005 to project th at by now the promotion should have been considered by considering the petitione r’s service seniority, but despite the Court’s direction in the earlier round, t he HOUSEFED authorities have deferred consideration through the impugned resolut ion of 4.7.2006 (page 58), until receipt of Govt. confirmation on the tribal sta tus of the petitioner. 4. It may be noted that although the petitioner takes the tribal surname ’K hersa ’, his father is Dr. Harendra Nath Gogoi is a non-tribal and belongs to th e OBC category. But the petitioner’s mother Nilota Khersa belongs to the Dimasa Kachari community, which is recognized as a ST(H) community in Assam and claimin g lineage through his mother, the petitioner secured a ST(H) certificate on 27.9 .1988 (Annexure-1). 5. Since he was understood to have entered service through mis-representat ion of his tribal status, the petitioner’s claim for promotion was initially kep t pending by the Managing Director, HOUSEFED through his order dated 18.7.2005 ( Annexure-11) for verification of the social status of the petitioner. Thereafter the District Scrutiny Committee constituted through the Govt. Notification of 5 .10.2003 scrutinized the social status of about 105 persons and this Committee w hich met on 12.9.2005, declared the petitioner’s ST certificate to be ’genuine’. Accordingly the HOUSEFED authorities were expected to consider promotion by con sidering the petitioner too as a ST(H) category person. 6. But it appears from the counter affidavit filed by the HOUSEFED that ear lier the EAC, Kamrup (R) scrutinized the petitioner’s tribal status. In this exe rcise where the petitioner was afforded hearing, the inquiry officer found that the petitioner stayed at Guwahat in Kamrup (Metropolitan) District and was broug ht up by his doctor father Dr. Harendra Nath Gogoi, who himself is a non-tribal (OBC). Therefore it was held that the petitioner is disentitled to claim the mot her’s tribal status. 7. However Advocate Mr. M Nath submits that the District Scrutiny Committee constituted through the Govt. Notification dated 5.10.2003 had re-affirmed the petitioner to be member of the ST(H) category and on this basis it is argued tha t the petitioner be considered for promotion as was earlier directed by this Cou rt in the WP(C) No.9167/2005. The counsel submits further that since he did not join service as a tribal category person, the promotion can be considered as a G eneral Category candidate. 8. On behalf of the HOUSEFED authorities, Advocate Mr. B Chakraborty projec ts that ordinarily there may not be any difficulty to consider promotion by trea ting the petitioner as a General Category candidate. But here the petitioner dec eived his employer by hiding his father’s name in his application form and false ly mentioning the name of Nilu Khersa against the father’s column in the applica tion. Therefore the HOUSEFED authorities wanted to start a disciplinary proceedi ng against the petitioner. It is also projected that the correct name of the pet itioner’s mother is ’Nilota’ but he deliberately mentioned the abbreviated name ’Nilu’ only because, the shortened name ’Nilu’ connotes the neutral gender. Beca use of this mischief, the employer wrongly understood (cid:28)Nilu Khersa (cid:29) to be the ap plicant’s father. For furnishing such misleading information in the relevant col umn of the application on 24.8.1994, which was the basis for the appointment ord er dated 11.11.1994, the employer wanted to initiate a disciplinary proceeding a gainst the wrongdoer but this Court in the Misc. Case No.2260/2008 declared that this prayer of the employer for leave to initiate departmental action will be c onsidered at the stage of hearing. Accordingly Mr. Chakraborty now prays for the liberty to proceed against the petitioner. 9. Representing the State Authorities, Ms. K Devi concedes that there are c ontrary findings by the EAC and the District Scrutiny Committee on the tribal st atus claimed by the petitioner. But she highlights that while adverse report of the EAC was given after affording hearing to the petitioner, the contrary report of the District Scrutiny Committee fails to disclose the basis on which, the pe titioner’s claim was declared to be ’genuine’. 10. On the pleaded case, the issue that arises for determination of the Cour t is whether the petitioner despite his father being a non-tribal is entitled to be treated as a member of the ST(H) category on the basis of his mother’s triba l status. To answer this issue, it may now be appropriate to take note of the re levant decisions of the Supreme Court in Kumari Madhuri Patil vs. Addl. Commissi oner, Tribal Development reported in (1994) 6 SCC 241; Valsamma Paul vs. Cochin University reported in (1996) 3 SCC 545 and Anjan Kumar vs. Union of India repor ted in (2006) 3 SCC 257. 11. When a non tribal undeservedly makes claim through ST certificate, it ha s the affect of depriving the genuine tribals, the reservation benefits conferre d on them by the Constitution. Therefore in Kumari Madhuri Patil (Supra), the Ap ex Court directed verification of the social status certificate by a committee. Who should be the members of this Committee, the rank and designation of the Com mittee members were specified by the Supreme Court and no other Committee is com petent to evaluate the evidence and record findings on the social status certifi cate, when the claim is questioned for an individual. 12. In Valsamma Paul (Supra), the Supreme Court was dealing with a situation where a forward class lady had married a backward class Latin Christian and cla imed the benefit of reservation. Here the Apex Court declared that when a person gets transplanted to a reserved category, benefit of reservation can only be cl aimed, when it is demonstrated that the transplanted person suffered the same di sability, disadvantage, indignities or sufferings. But a candidate who had the a dvantages of forward community does not become eligible for benefit of reservati on by mere transplantation. Similarly while considering the claim of an offsprin g born through the marriage of a ST(P) mother and a forward caste father, the Ap ex Court held that children of tribal woman, married to a non-tribal husband can ’t claim the benefit of tribal status, if the child has not suffered any disabil ity and was brought up in an environment of a forward community. 13. In the case in hand, although one Committee has held the petitioner’s tr ibal status to be a ’genuine’, there is nothing on record to indicate the basis of the said finding by the District Scrutiny Committee. But in the verification made by the Kamrup EAC, the petitioner’s background was taken into account and i t was clearly indicated that his father is non-tribal and the offspring was brou ght up in a non-disadvantageous environment at Guwahati. But what is of greater relevance is that the Supreme Court expected veri 14. fication of social status of a doubtful claimant through a specific Committee, c onstituted by specified ranking officers. Here the District Scrutiny Committee w hich gave its finding was not the authorized Committee. Therefore the favourable finding given by the District Scrutiny Committee constituted through Govt. Noti fication dated 5.10.2003, does not have any legal validity and can’t be conclusi ve on the petitioner’s tribal status. Undoubtedly the petitioner’s father is a n on-tribal and he was a serving Professor in the medical college at Guwahati. The petitioner was educated in a premier school and brought up in an advantageous m etropolitan environment in Guwahati city and was not subjected to any disability . In this circumstance, I am of the view that petitioner’s promotion shouldn’t b e considered by treating him as a tribal category person. But his promotion as a general category person is certainly permissible as was directed through the Co urt’s order dated 28.2.2005 in WP(C) No.9167/2005. 15. On the ST(H) certificate produced by the petitioner for getting the job, I feel that his social status should now be re-verified by that competent Commi ttee, specified in Kumari Madhuri Patil (Supra), since the finding by the incomp etent District Scrutiny Committee can’t have any legal consequence. As regards the disciplinary proceeding contemplated by the employer for 16. furnishing false information by the petitioner when he entered service, having c onsidered the Court’s order dated 11.8.2008 in the Misc. Case No.2260/2008, furt her steps are left to the wisdom of the HOUSEFED authorities, since this case pe r se has nothing to do with any disciplinary proceeding. 17. In view of above, the State authorities are directed to re-verify whethe r the petitioner is entitled to claim tribal status through his mother’s lineage or he is only an OBC like his father. The re-verification exercises should howe ver be conducted by the competent Committee as was specified by the Supreme Cour t in Kumari Madhuri Patil (Supra). During scrutiny, the petitioner be afforded d ue opportunity to have his say. 18. on cost.
Decision
With the aforesaid direction, the case stands disposed of with no order