JUDGMENT
K.V. Sachidanandan, Member (J)
1. Applicant’s case is that she belongs to ‘Mala Araya’ community, which is included in the list of Scheduled Tribes in the State of Kerala and is entitled to reservation/concession admissible to Scheduled Tribe Community. Annexure A/1 is the true copy of 3rd page of SSLC Book showing her caste as CSI (Mala Araya). The applicant applied for selection and appointment to the post of Time Scale Clerk in the Post Office against one of the vacancies showing her community as ‘Mala Araya’. Annexure A/2 is the true copy of the letter dated 12.11.71 addressed to the 3rd respondent. The 2nd respondent informed the applicant that on scrutiny of her application it was found that she did not furnish the community certificate issued by the Competent Authority and directed the applicant to obtain and forward the said certificate in the prescribed form issued by an officer of the Revenue Department, not below the rank of Tahasildar, within five days of the receipt of the said letter as per the letter dated 25.3.72 (Annexure A/3). The applicant forwarded the aforesaid certificate and she was selected for appointment as Post Office Clerk against the quota reserved for Scheduled Tribe Community and she was allotted to Kottayam Division as per Memo dated 18.5.72 (Annexure A/4). The applicant entered into service as Post Office Clerk on 13.3.79 at Collectorate Post Office, Kottayam Division. She has passed the confirmation examination for the post of P.O. Clerks 11.11.73, which was communicated to her by the 2nd respondent vide letter dated 12.3.74. Annexure A/5 is the true copy of the letter referred to above. She was transferred to Ernakulam Division on her request under Rule 38 of the P&T Manual, Volume IV and subsequently, on formation of the Aluva Postal Division, she opted for Aluva Division and has been continuing in that Division.
2. Applicant submitted that Time Bound One Promotion Scheme (TBOP Scheme, for short) was introduced with effect from 30.11.1983 in the P&T Department. Annexure A/6 is the copy of TBOP Scheme. As per D.G’s letter dated 28.12.90, it has been clarified that minimum service to be rendered by SC/ST officials for being eligible for promotion to selection grade post under TBOP Scheme as per roster is ten years. Applicant completed ten years of service by 13.3.83 and on the date of introduction of TBOP Scheme, the applicant became eligible for promotion under the said Scheme against shortfall vacancies to a reserved point for ST. However, the applicant was promoted to the higher grade under TBOP Scheme with effect from 13.3.89 on completion of 16 years qualifying service as per Memo dated 12.8.88. She was not given the benefit of Annexure A/7. It was subsequently modified by correcting the date of promotion as 13.3.89 instead of 1.3.89 as per Memo dated 19.11.97. Applicant submitted that her junior, namely Johnson Samuel T.P. who belongs to ST has been given promotion under TBOP Scheme with effect from 1.12.92 on completion of ten years of service against a shortfall vacancy in terms of Annexure A/7. Two other juniors to the applicant, namely M.M. Aniamma and K.S. Saramma belonging to S.T. category have been promoted under TBOP Scheme on completion of ten years of service as is evident from the Divisional Gradation list of Postal Assistants as on 1.7.95, corrected upto 1.7.96. Annexure A/9 is the true copy of the Gradation List of official promotion under TBOP Scheme showing the latest position of the applicant and her above named juniors. She was not given the benefit of promotion under TBOP Scheme as per Annexure A/7 presumably for the reason that her caste status was not noted in the file relating to here service particulars at the time of her transfer to Ernakulam Division. She was given promotion under TBOP Scheme only after completing 16 years of service. The applicant was not known that there was an omission to note her caste as ST when the service records were transferred to Ernakulam Division on her transfer. She came to know about this fact only on 28.11.98 while affixing her signature in the service register as instructed by the Post Master, Muvattupuzha Head Office.
3. On knowing this omission in the service book, the applicant submitted a representation dated 8.12.98 (Annexure A/10) to the third respondent alongwith 3rd page of her SSLC book showing her caste as C.S.I (Mala Araya). Thereafter, she was advised to produce a community certificate in the prescribed proforma form from the Competent Authority vide letter dated 5.1.99 (Annexure A/11). In reply, the applicant submitted a detailed representation dated 16.1.99 (Annexure A/12) pointing out that she belongs to ST category as per letter dated 12.3.74 (Annexure A/5). Vide Annexure A/13 letter dated 28.1.99, the applicant was asked to forward the reason as to why she did not point out this fact when she attested the entries earlier. The applicant again submitted a representation dated 4.2.99 (Annexure A/14) to the first respondent explaining that she attested her service book twice before 28.11.98 due to an oversight and that her personal file would show that she was recruited under ST quota. The applicant requested to take urgent action to note her caste as Scheduled Tribe and to restore all service benefits which have been wrongly deprived of to her. Thereafter, she has been served with a letter dated 16.12.99 (Annexure A/15) informing that she was appointed against a general vacancy and that in her service book her community is shown as O.C. The applicant was advised to furnish a fresh community certificate from the Competent Authority. Accordingly, she obtained a fresh community certificate dated 24.2.99 (Annexure A/16) and submitted the same alongwith a representation dated 1.3.99 (Annexure A/17) to the first respondent requesting to make necessary correction in the entry relating to her caste in the service book and to grant all consequential benefits. Later, she was directed to submit the community certificate in the prescribed proforma, which she did. Vide Annexure A/18 letter dated 11.2.2000, she was informed that the aforesaid certificate was sent to the District Collector, Ernakulam, for verification. Thereafter, she has been served with a Memo dated 25.4.2000 (Annexure A/19) stating that the community certificate produced by her is accepted from the date of issue, i.e. 24.2.1999, and further that her service records has been corrected mentioning her caste as Scheduled Tribe. It has also been stated that the service benefits, if any, on account of revised community certificate would be allowed from the date of issue of the certificate.
4. In the meanwhile, the applicant has been promoted to the next higher grade in the scale of pay of Rs. 5,000-150-8,000 on completion of 26 years of service in the basic cadre of Postal Assistant and L.S.G. put together under Biennial Cadre Review Scheme with effect from 1.7.99 as per Memo dated 20.9.99 (Annexure A/20). As per letter dated 6.1.93 (Annexure A/21), if sufficient number of officials of SC/ST communities having 26 years of service (in the basic scale and TBOP scale put together) are not available against the points reserved for them in the 40 point roster, SC/ST officials with even less than 26 years of service will be given promotion to the extent of the shortfall, provided they have rendered a minimum of 17 years of service in the two grades put together as Government of India, Department of Posts letter dated 6.1.93 (Annexure A/21). The applicant completed 17 years of service in the two grades put together by 13.3.90 and became eligible for the benefit of concession for promotion under BCR Scheme in terms of Annexure A/21. Therefore, the applicant ought to have been considered for promotion under BCR Scheme in the next BCR conducted after 6.1.93. But she was not considered for promotion under BCR Scheme after completing 17 years of service for the reason that she was wrongly treated as belonging to open category. Applicant submits that she is legally entitled to the concessions and benefits admissible to ST category. Aggrieved by the said action/inaction on the part of the respondents, the applicant has filed this O.A. seeking following reliefs and pleaded that the respondents are compellable to make available all the benefits and concessions disallowed to the applicant by way of full restitution:
"(i) To call for the records leading to Annexure A/19 and to set aside the same to the extent it restricts the benefits and concessions admissible to Scheduled Tribe to the applicant only from the date of production of the Community Certificate dated 24.2.1999; (ii) To declare that the applicant is entitled to all service benefits and concessions admissible to a Scheduled Tribe employee without any restriction as made in Annexure A-19; (iii) To issue appropriate direction or order directing the respondents to grant the applicant promotion under TBOP Scheme and BCR Scheme on completion of ten years of service and 17 years of service in terms of Annexure A/7 and Annexure A/21 with all consequential benefits including arrears of pay and allowances; (iv) To grant such other reliefs which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the cases; and (v) To award costs to the applicant."
5. The respondents have filed a detailed reply statement contending that the applicant was selected for appointment as Postal Clerk with effect from 13.3.73 in Kottayam Postal Division vide order dated 27.6.73 (Annexure R/1). She was subsequently transferred to Ernakulam Division at her request under Rule 38 of P&T Manual, Volume IV, and on bifurcation of Ernakulam Division, the applicant opted for Aluva Division and has been continuing in Aluva Postal Division. She was promoted to the next higher grade with effect from 13.3.1989 on completion of 16 years of service in the basic cadre according to the TBOP Scheme introduced in the department with effect from 30.11.83. She submitted Annexure A/10 representation requesting to enter her caste as Scheduled Tribe in the service book. The applicant did not produce any documentary evidence to substantiate that she had applied for the post of Postal Clerk against the vacancy reserved for the persons belonging to Scheduled Tribe. Applicant’s service book is Annexures R/2 and R/3. As per Annexure R/3, the applicant will be treated as an employee belonging to unreserved community. The applicant had put her signatures in the service book on 1.10.74, 29.12.88 and 28.1.88 for having verified the entries. Annexure A/16 is the caste certificate issued by the Tahasildar, Muvattupuzha. After getting it verified by the District Collector, Ernakulam, Senior Superintendent of Post Offices, Aluva Division, issued Annexure A/19 order accepting the caste certificate dated 24.2.99 from the date of the issue of the certificate. Annexure R/4 dated 17.12.83 is the copy of TBOP Scheme introduced in the department. According to the said Scheme, Group ‘C’ and ‘D’ employees were promoted to the next higher grade after completion of 16 years of service as per Annexure R/4. Accordingly, the applicant was promoted with effect from 1.3.89. There was no shortfall of vacancies reserved for Scheduled Tribe in 40 point roster at that time. Her juniors belonging to Scheduled Tribe Community were promoted to next higher grade on completion of ten years of service as there were shortfall of ST vacancies. Applicant’s junior Johnson Samuel, who belongs to Scheduled Tribe has been promoted under TBOP Scheme with effect from 1.10.92 on completion of ten years of service against shortfall of vacancy in terms of Annexure A-7. Two other juniors to the applicant belonging to ST category have been promoted under TBOP Scheme on completion of ten years of service with effect from 1.12.92 and 15.2.93 respectively. Annexures R/6 and R/6(a) are those promotion orders. The applicant represented for service benefits to ST employees on 8.12.98 only and hence, the claim as well as O.A. are barred by limitation.
6. The applicant was promoted to the next higher grade in the pay scale of Rs. 5,000-150-8,000 on completion of 26 years of service in the basic cadre of Postal Assistant and TBOP put together under BCR Scheme with effect from 1.7.99. Appellant has not produced any documentary evidence to substantiate that she had applied for the post of Postal Clerk against the vacancy reserved for the persons belonging to ST category. There was no shortfall of vacancies reserved for ST against 40% roster at that time, as claimed in the O.A. None of the juniors belonging to ST category were given promotion to next higher grade prior to a date on which the applicant was promoted. Her selection was not proved to be against the reserved vacancy and there was no shortfall vacancy available at the time of her promotion to higher grade. Applicant was recruited against a general vacancy and not against a reserved vacancy for ST. On receipt of the certificate from the Competent Authority, the order to that effect was issued. If the selection was made for ST quota, there would have been clear mention about this in Annexure A/4. Service book and Gradation list are the basic records to establish the caste/religion of an employee. The applicant has not exhausted the normal channels for representing her case. The could have very well appealed against the said order to the Director of Postal Services, Central Region, Kochi. Instead of this, she straight away filed the pre-sent O.A. On this score alone, the O.A. is to be dismissed.
7. Applicant filed a rejoinder contending that the 3rd page of the SSLC book clearly shows that the applicant belongs to C.S.I. (Mala Araya) which is classified as Scheduled Tribe and Annexure A/2 dated 12.11.71 also shows that she applied for selection as Time Scale Clerk against the vacancies earmarked for ST. Applicant submitted that the action of the respondents i n accepting her caste certificate only with effect from the date of Annexure A/16 is clearly illegal and is not justified in logic. The respondents are estopped from contending that she did not produce tangible evidence to establish that she was selected against a reserved vacancy in view of Annexure A/5. Applicant also filed two additional documents through M.A. No. 878/2002 which have been taken on record as Annexures A/22 and A/23 by order dated 13.9.2002.
8. We have heard Mr. O.V. Radhakrishnan, learned Counsel for the applicant as well as Mr. P.J. Philip, ACGSC (represented by Ms. Viji), learned Counsel for the respondents.
9. Learned Counsel for the applicant submitted that the plea of respondents that the service benefits on account of the revised community certificate will be allowed from the date of issue of certificate, is illegal, arbitrary, discriminatory and is violative of Articles 14 and 16 of the Constitution of India. The lapse on the part of the officials/ office of the Appointing Authority should not prejudice the right of an employee and on that account, an employee should not be penalised. On the other hand, learned Counsel for the respondents submitted that if the applicant was recruited against a vacancy reserved for ST category, she could have produced documentary evidence for the same and in the absence of that the department could not accept that she was appointed against ST vacancy. Caste of the applicant was noted in the service book on receipt of the community certificate Annexure A/16 and the benefit would be given only from the date of issue of that certificate. The benefits provided to ST candidate is a mandatory provision enunciated in the Constitution and any deviation, if any, will be violation of constitutional provisions in granting the benefits to them.
10. We have given thoughtful consideration to the pleadings, materials placed on record and the arguments advanced by the learned Counsel for the parties.
11. Article 342 of the Constitution of India [see 17th edition, 1999 (as amended upto Constitution Seventy-eighth Amendment) of Constitution of India, published by Eastern Book Company, Lucknow, reads as follows:
“342. Scheduled Tribes.-(1) The President 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 purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) and tribe or tribal community or part of group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification NOTES Articles 341, 342 and 19(1) (c) & (f)--Migration to other State of India by SC/ST--Benefit available in the Original State where he was SC/ST cannot be availed of in other States of India. Marri Chandra v. Dean, Seth G.S. Medical College, (1990) 3 SCC 130; Action Committee v. Union of India, (1994) 5 SCC 244."
The notes appended to the Articles referred to above, therefore, make it clear that in case of migration by SC/ST to other States of India, benefit available in the Original State where he was SC/ST cannot be availed of in other States of India. That means the conferment of the status various from State to State, place to place and time to time. Here is the case where a C.S.I. Christian converted from ‘Mala Araya’, a Scheduled Tribe of Kerala, is claiming the benefit of ST community. It is a settled proposition of law that a Scheduled Caste or Scheduled Tribe converted into Christianity will not loose his/her status. They used to enjoy the status even after conversion. According to the applicant, she is in service with effect from 13.3.79 at Collectorate Post Office, Kottayam Division, and she had produced all the documents including the caste certificate obtained from the concerned officer. On verification, the department found that no such certificate has been produced earlier and contended that had it been produced, it would have been mentioned in the service book and the benefit would have also been given. It is also averred that the applicant did not produce any documentary evidence to show that she had applied for the post of Postal Clerk against the ST quota. She verified the entries made in the service book by putting her signature on 1.10.74 when she noted that she does not belong to ST category. Again, the applicant verified the entires made in the service book on 28.1.88 and 29.12.88, but had never pointed this fact when she reattested those entries. It is further stated in Annexure A/15 letter dated 16.2.99 that in the service book, her community is shown as ‘OC’ and accordingly she was advised to obtain a fresh community certificate from the Revenue Officer not below the rank of Tahasildar so as to correct the entry in the service book. The Tahasildar, who has issued a Caste Certificate (Annexure A/16) in respect of the applicant, which is reproduced below:
“No. SR. 725/99
CASTE CERTIFICATE
Certified that Smt. Leelamma Devasia. M, W/o. T.P. Joy alias T.P. Thomman, Thachilukandathil House, Ramamangalam Village, Muvattupuzha Taluk, Ernakulam District, is a Member of Malai Araya Christian Family converted to Christianity from Hindu Malai Arayan Community which is included in the list of Scheduled Tribes (Vide G.O. (MS) No. 57/84/HWD dated 4.8.1984.
This certificate is issued for producing before the Department of Posts, India, and which is issued on the basis of the report No. 164/99 dated 23.2.1999 of the village Officer, Muttom.
Sd/-
Tahasildar
Taluk Office, Muvattupuzha,
Dated : 24.2.1999
12. It is very clear that Malai Araya Christian family who converted to Christianity from Hindu Malai Arayan Community, included in the list of Scheduled Tribes with effect from 4.8.1984 only. The caste certificate was issued on 24.2.99 and it was forwarded to the department on 1.3.99. Annexure R/3 is the document whereby the applicant has been treated as an employee of an unreserved (ST) category. The applicant represented for the reservation benefit for the first time on 8.12.98 only. Annexure A/7 under the subject–promotion under TBOP Scheme–implementation of the judgment of Hon’ble Supreme Court of India–was issued on 12.1.91 forwarding the letter dated 28.12.90 on the subject and the applicant has no claim on that ground as she does not belong to ST community as per office records and her promotion was ordered prior to the said date i.e. 28.12.90. Apart from that none of the ST candidates junior to the applicant have been given promotion to next higher grade prior to the date on which the applicant was promoted. Hence, no prejudice has been caused to the applicant. For the first time, the applicant was approved as an ST candidate from the date of issue of the caste certificate, i.e. on 24.2.99. It is also pertinent to note that the applicant did not file any document showing that she was initially selected against ST quota. In our view, the service book and the gradation list are basic records to prove the caster and religion of an employee, which is testified by the concerned employee/applicant from time to time after verifying and attesting the entries. The fact that no representation prior to 8.12.98 was not made by the applicant to obtain such relief would also put some shadow on the claim of the applicant.
13. Considering the facts and circumstances of the case and also the spirit of the intention of Article 342 of the Constitution of India, we are of the view that the applicant is not entitled to be considered for giving the benefit of reservation under ST quota from the date of her entry in service and she is entitled and eligible for the said benefit only from the date of issue of the caste certificate. Further, she is eligible for any concession in case if there is a shortfall of ST vacancy. This is more so on the ground that if a SCI ST candidate cames on top rank on selection process that candidate need to be considered only on merit basis and not on the quota basis. Probably at the time of selection, taking into the fact that ‘Malai Araya’ would not have been considered as an ST community, the applicant would not have taken the benefit of that category and she would have been selected on the basis of merit. Therefore, the question of claiming benefit under the reserved category at that point of time does not arise. It is but legal that the respondents could only be considered the applicant in the reserved category as and when the certificate is produced by the applicant. Moreover, she has not claimed the benefit before 1998. They have also made it clear that the applicant was approved as ST candidate with effect from the date of issue of the community certificate and can grant all concessions available to the reserved category thereafter. Therefore, we are of the view that the impugned order Annexure A/19 dated 25.4.2000 cannot be faulted and hence, there is no reason to set aside and quash the same.
14. In the conspectus of facts and consideration, we cannot find fault with the impugned order and hence the O.A. does not merit. Therefore, we dismiss the O.A. with no order as to costs.