V. Karunakaran vs The General Manager (HR), Bharat Heavy Electrical Limited

P.R. Shivakumar, J.—We have heard the submissions made by Mr. M. Ajmal Khan, learned Counsel appearing for the appellant and also by Mr. B.T. Seshadri, learned Senior Counsel appearing for the respondent and perused the materials available on record.

The appellant had filed the above said Writ Petition No. 2384 of 2005 praying for the issue of a writ of Certiorarified Mandamus, to call for the records of the respondent relating to his proceedings No. BP:P2:2191458 dated 05.02.2005 and quash the same and to consequently direct the respondent to open the sealed covers that are kept unopened from the year 1995 dealing with the matter of appellant''s promotion to the category of Deputy Manager from the year 1995, to the category of Manager in the year 1998 and then to the category of Senior Manager in the year 2002 and to promote the appellant with all arrears of salary and other attendant benefits.

The learned Single Judge, after hearing both sides, declined the prayer made in the writ petition and dismissed the same by order dated 09.05.2007. Challenging the said order of the learned Single Judge dated 09.05.2007, this present Writ Appeal has been filed.

For the sake of convenience, the brief facts leading to the filing of the writ petition can be stated thus:

(i) The appellant having obtained a degree in Engineering applied for the post of Engineering trainee in the respondent concern in the year 1985. While making such application, he claimed to be a member of a Scheduled Tribe. However, at the time of submitting application and subsequently when the written test and interview were held, he was not in a position to secure a community certificate from an authority competent to issue the same and hence, he made a representation before the respondent that his candidature as a person belonging to Scheduled Tribe for the post of Engineer trainee could be considered based on the prima facie material, namely the first page of S.S.L.C. Book and if selected provisional appointment could be made. In fact, on being selected, he gave a representation in writing informing the appointing authority that he had already applied for the community certificate and he expected the same to be issued to him within a month or so. He had also incorporated an undertaking to produce such community certificate.

(ii) From the materials available on record, it is obvious that he was appointed as against the vacancy reserved for scheduled tribe and with a specific understanding that his appointment was liable to be cancelled, if he would not be in a position to produce the community certificate as undertaken or in the event that he was found to be not a member of a scheduled tribe at a later point of time. The appointment order was issued on 22.08.1985. Subsequently by an order dated 21.08.1987 on completion of probation, he was regularised and absorbed as Product Engineer with effect from 14.08.1986. By an order dated 22.12.1990, he was promoted as Senior Product Engineer with effect from 25.12.1990. Till such time the petitioner was not able to get a community certificate from the competent authority. It seems he was again and again making representations to the Tahsildar of Kulithalai, Revenue Divisional Officer/Sub Collector of Karur and District Collector of Trichirappalli before the said District was trifurcated into Trichirappalli, Perambalur and Karur Districts. Ultimately, the District Collector, Tiruchirappalli passed an order to the effect that the appellant belonged to Hindu Vedar community and not Kattunayakkan communcity as claimed by him. As against the said order of the District Collector, Trichirappallai, the appellant filed a Writ Petition No. 517 of 1986. A Division Bench of Madras High Court allowed the above said writ petition along with a writ petition No. 12704/1994 by its order dated 18.09.1995 quashing the order of the Collector in Rc.M2. 115916/85 dated 26.12.1985 and issued the following directions:

(1) The petitioners shall appear before the Collector, Tiruchy District on 16th October, 1995. On that day, the Collector shall serve the notice containing the grounds and also the copies of the records and the documents, if any, which would be relied upon by him for the purpose of deciding the question as to whether the petitioners belong to ''Kattunayakan'' community.

(2) On receipt of such notice along with the copies of the records and the documents, if any, the petitioners shall file their objections, if any, within two weeks thereafter.

(3) The Collector shall record any evidence that may be adduced and take on file the documents, if any, produced by the petitioners, hear and decide the cases. The Collector need not be bogged down by the fact that what were pending before him were the appeals against the order passed by the Sub-Collector. He shall decide the matters as though he is deciding the same for the first time. The Collector shall decide the matter within four months from 16th October, 1995.

(iii) While the matter stood thus, the erstwhile combined Trichy District came to be trifurcated and hence, by an order dated 30.08.1986, the District Collector of Trichy referred the matter to the Collector, Karur on the ground of jurisdiction as a native place of the appellant comes within Karur District. Thereafter, the appellant filed another writ petition in W.P. No. 936/2001 for a writ of Mandamus, to forbear the Revenue Divisional officer, Kulithalai, Karur District from conducting any enquiry in respect of issuance of community certificate, as according to him, the same was against the directions of the Court issued in W.P. No. 517/1986. The said petition was disposed of by a Single Judge of Madras High Court with a direction to the District Collector, Karur to conduct an enquiry afresh for ascertaining the community status of the appellant and pass appropriate orders in accordance with law within a period of three months from the date of receipt of a copy of the said order. Meanwhile since the community status of the appellant was not confirmed, the Management chose to keep the result of the consideration of the appellant''s name for promotion in sealed covers and keep the same unopened from the year 1995 for the category of Deputy Manager and then in the year 1998 for the category of Manager and again in the year 2002 for the category of Senior Manager. Aggrieved by the same, the appellant filed W.P. No. 4820 of 2004. The said writ petition came to be disposed of by this Court directing the General Manager of the respondent Management to dispose of the representation of the petitioner within a time stipulated therein. Thereafter by the order impugned in the present writ petition, dated 05.02.2005, the General Manager of the respondent Management held that the appellant was not entitled for promotion by opening the sealed covers for the time being as denova enquiry was pending before the District Collector, Karur regarding the community status of the appellant and that the appellant should wait for its result. As against the said order of the District collector, Karur, the present writ petition has been filed.

The learned Counsel for the appellant would argue that the respondent having been provisionally appointed the appellant accepting his undertaking that he would produce the community certificate as and when obtained from the competent authority and having promoted him to the first level promotion post, the respondent Management is not justified in refusing further promotion or deferring the same for the simple reason that enquiry regarding the community status of the appellant is pending before the District Collector, Karur. In support of the above said contention, the learned Counsel for the appellant has relied on the judgment of the Madras High Court in K. Suresh Babu Vs. State of Tamil Nadu and others, and the judgment of the Apex Court in R. Kandasamy Vs. Chief Engineer, Madras Port Trust, .

In the judgment of the Madras High Court in K. Suresh Babu''s case, it was held that prior to 11.11.1989 when G.O.Ms. No. 2137 was issued, Tahsildars were empowered to issue community certificates even in respect of scheduled tribes and the certificates issued prior to the said date by the Tahsildars were good enough for all the concerned authorities to take them into consideration either for admission in educational institutions or for appointments, so long as such certificates were in force and they were not cancelled.

The Apex Court in R. Kandasamy''s case has also expressed the similar view. The relevant portions found in paragraphs 4 and 5 are extracted here under:

On a doubt being raised regarding the validity of certificates issued by the Tahsildar prior to 11.11.89, the Joint Secretary to the Government of Tamil Nadu on 3.4.1991 informed the Collectors of various districts in Tamil Nadu that "the permanent Community Certificate issued to Scheduled Tribes by Tahsildars up 11.11.89 is valid." This communication had been placed on record in the High Court. From a combined reading of G.O.M.S. No. 2137 dated 11.11.89 and letter of the Joint Secretary dated 3.4.1991 (supra) it follows that whereas a Community Certificate after 11.11.89 is required to be issued by the Revenue Divisional officer, but the Community Certificates issued by the Tahsildar prior to 11.11.89 are valid certificates. In view of this position, it was not proper for the respondent to have insisted upon a fresh certificate to be produced by the appellant from the Revenue Divisional officer as admittedly the Community Certificate produced by the appellant had been issued by the Tahsildar concerned in 1987, that is, prior to 11.11.89.

In our opinion the Community Certificate issued to a Scheduled Tribe candidate by the Tahsildar prior to 11.11.89 is a good and valid Community Certificate for all purpose so long as such a certificate is not cancelled. The authorities cannot decline to take that into consideration and insist upon a fresh community Certificate from the Revenue Divisional Officer.

In order to bring the case of the appellant within the purview of the view expressed by the High Court and the Apex Court in the above cited judgments, the appellant has made a contention that he got a community certificate on 30.06.1978 issued by the Deputy Tahsildar, Saidapet and that so long as the said certificate is not cancelled, the authorities are bound to act upon the said certificate. With due respect to the above said observations made by the Apex Court, we are unable to accept the said contention made on behalf of the appellant. The reasons are : (i) The community certificate said to have been issued by the Deputy Tahsildar, Saidapet was never produced before the appointing authority, namely the respondent Management to prove the appellant''s community status as a member of a Scheduled Tribe; and

(ii) The said certificate was not issued by a competent authority as the Tahsildars.

Independent Deputy Tahsildars and Tahsildars alone had been empowered to issue community certificates in respect of people belonging to Scheduled Castes and Scheduled Tribes and Deputy Tahsildars other than the Independent Deputy Tahsildars were not empowered to issue community certificates even prior to 04.11.1981, as seen from G.O.Ms. No. 2906 Revenue Department, dated 04.11.1981.Only from 04.11.1981 by virtue of G.O.Ms. No. 2906 Head Quarters Deputy Tahsildars were also empowered to issue community certificates. Even then as per the said G.O., ordinary Deputy Tahsildars other than the Independent Deputy Tahsildars and the Head Quarters Deputy Tahsildars were not empowered to issue community certificates. Subsequently by G.O.Ms. No. 2137, AD & TW Department, dated 11.11.89, the power to issue community certificate to members of scheduled Tribe has been exclusively given to the Revenue Divisional officer/Sub Collector.

The observations made in the judgments cited above that so long as the certificate issued is not cancelled in accordance with law, the authorities are bound to honour and act upon, is applicable only in respect of certificates issued by the competent authority empowered to issue the same. In this case, the certificate allegedly issued by the Deputy Tahsildar, Saidapet is not the one issued by a competent authority.

The appellant himself did not rely on the certificate issued by the Deputy Tahsildar, Saidapet for his claim that he belonged to a Scheduled Tribe and what he did was to inform the appointing authorities that he had applied for getting a community certificate from the Tahsildar, Kulithalai and that he expected to get the same within a short span of time. He had also undertaken to produce such certificate obtained from the competent authority. Obviously, knowing fully well that the certificate issued by the Deputy Tahsildar was not valid, as he was not such a competent authority to issue the community certificate on the date of its issue, the petitioner had chosen to make such a representation to the appointing authority at the time of interview and appointment. In view of such facts and circumstances stated supra, we are of the considered view that the contention of the learned Counsel for the appellant that the community certificate issued by the Deputy Tahsidlar, Saithapet should be honoured till such certificate is cancelled in the manner known to law cannot be countenanced.

It is the further contention of the learned Counsel for the appellant that at the time of his appointment as Engineer trainee, the rules of appointment provided that the first page of S.S.L.C. Book containing the name of community could be accepted as sufficient proof of his community status and that the respondent Management, in fact, accepted and acted upon the same in issuing the appointment order to the appellant holding him to be a member of a Scheduled Tribe and that having accepted the S.S.L.C. Book as sufficient document to prove the community status and acted upon the same, the respondent should be estopped from questioning the same and denying the promotional benefits to the appellant.

Of course, it is true that the appellant has chosen to produce a copy of the Brochure, in which it has been stated as follows:

Any of the following certificates may be accepted by the appointing authority as sufficient proof in support of a candidate''s claims as belonging to the Scheduled Caste or Scheduled Tribe:

(i) Matriculation or school leaving certificate or the birth certificate giving the caste or community of the candidate and place of residence.

(ii) A certificate in the form given in Appendix 15 issued by one of the authorities listed in Appendix 16.

Of course, the Brochure applicable at the time of his appointment in Clause 7(1) was to the effect that matriculation or School Leaving Certificate or birth certificate giving the caste or community of the candidate at the place of residence might also be accepted by the appointing authority as sufficient proof in support of a candidate''s claims as belonging to the scheduled caste or scheduled tribe. Clause 48 was to the effect that where a candidate belonging to a scheduled caste or scheduled tribe was unable to produce a certificate from any of the prescribed authorities, he might be appointed provisionally on the basis of whatever prima facie proof, he was able to produce in support of his claim subject to his furnishing the prescribed certificate within a reasonable time or if there was genuine difficulty in his obtaining a certificate, the appointing authority itself should verify his claim through the District Magistrate concerned.

Only by virtues of the above said clauses found in the Brochure issued by the Government of India, Department of Personnel Cabinet Secretariat, the S.S.L.C., certificate of the appellant was accepted as a prima facie proof and initial appointment was made accepting the appellant''s undertaking to produce the necessary community certificate obtained from the competent authority. Taking note of the above said clauses in the Brochure alone, the earlier Division Bench in W.P. No. 517/1986 by order dated 18.09.1995 had directed the question of the appellant''s community status to be enquired into by the Collector of Trichy. As there was trifurcation of Trichy District, subsequent to the said order, the matter is now pending on the file of the District Collector, Karur.

Be that as it may, in view of the directions given by the Honourable Supreme Court in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, and the subsequent Government orders issued by the Government of Tamil Nadu in G.O. (2D). No. 108 dated 12.09.2007 verification of communal status/community certificate regarding Scheduled Tribe has to be undertaken by the State Level Scrutiny Committee. Though strictly speaking the said G.Os. may not be applicable to the case of appellant, as there is no community certificate issued by a competent authority, in view of the direction of the earlier Division Bench in W.P. No. 517/1986 dated 18.09.1995, directing verification of the community status of the appellant and in the light of all the latest G.O. issued by the Government of Tamil Nadu regarding verification of community status of persons claiming to be members of scheduled tribe, we think that time has come for issuing a direction in modification of the above said direction of the earlier Division Bench to the effect that such enquiry should be conducted by the State Level Scrutiny Committee instead of the District Collector, Karur.

To the question whether the benefit of promotion should be withheld till the disposal of the matter by the State Level Scrutiny Committee, the answer of this Court will be affirmative as the same alone will serve the interest of justice in this matter. In support of such conclusion, the following additional facts can be noticed:

In fact though the appellant claims to have obtained a community certificate from the Deputy Tahsildar, Saidapet on 30.06.1978 as pointed out supra, knowing fully well that the certificate was not issued by a competent authority, the appellant seems to have got admission in the Engineering College as against the quota reserved for Scheduled tribe in the academic year 1980-1981 after giving an undertaking to get the community certificate from the competent authority and produce the same. However till he completed the B.E. Degree course in the academic year 1984-1985, he could not get such a community certificate and produce the same. The said state of affairs continued when he applied for appointment in the respondent Management also. After having been appointed in the respondent Management in the year 1985, he could not get the necessary community certificate from the competent authority till now.

Under these circumstances, what the Management did was perfectly correct and directed towards the satisfying interest of justice. The appellant who is not possessed of a valid community certificate issued by the competent authority was able to get admission in a professional course against the quota reserved for Scheduled Tribe. He has come out successfully with the degree without even producing the necessary community certificate. Subsequently appointment was also made without production of such a certificate, but accepting his undertaking to produce the certificate within a reasonable time. This process has prolonged for a period of 27 years including the period covered by the course leading to the Engineering degree. If such a sorry state of affairs is allowed to continue and the appellant is conferred with the benefit of promotion and other benefits before finality is arrived at in the verification process regarding his community status, the same may lead to a situation wherein he may protract the case still reaching the age of superannuation.

Under these circumstances, we do not find any error or infirmity in the order of the learned Single Judge and hence, we are disinclined to interfere with the same. However, taking note of the subsequent developments, namely changes brought by the pronouncement of the Apex Court and the Government Orders prescribing the mode of verification of the community status of a person, who has got appointment against the quota reserved for Scheduled Tribe, it has become necessary to dispose of the writ appeal with a direction that the question of verification of the community status of the appellant shall be taken up by the State Level Scrutiny Committee from the District Collector, Karur. This exercise by the State Level Scrutiny Committee shall be completed as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order. In case at the conclusion of enquiry by the State Level Scrutiny Committee, the appellant is found to be a member of scheduled tribe, then he shall be entitled to all the promotions with monetary benefits calculated from the respective dates on which the promotions became due to him. In case the finding of the State Level Scrutiny Committee goes against the appellant, then it shall be open to the respondent Management to take appropriate action against the appellant in accordance with law in which case case the question of opening the sealed covers and giving promotion would not arise. A copy of this order shall also be marked to the District Collector, Karur, who shall in turn transmit the file relating to the enquiry to the Secretary, State Level Scrutiny Committee within a period of 10 days from the date of receipt of a copy of this order. The appellant shall also make necessary application before the State Level Scrutiny Committee within a month from the date of receipt of a copy of this order to fix a date for hearing before the State Level Scrutiny Committee.

Accordingly the Writ Appeal is disposed of with the directions indicated above. However, there shall be no order as to payment of costs.