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1999 Supreme(Cal) 346
High Court Of Calcutta
Altamas Kabir
VIDYA G.NAIK - Appellant
Versus
SYNDICATE BANK - Respondent
W. P. 6732 Of 1998
Decided On : 07/07/1999
HIRAK MITRA, M.R.SARBADHIKARY, SOUMEN SEN
A candidate who has been assimilated into a Scheduled Tribe community may be considered a member of that tribe for the purpose of reservation benefits, even if not a member by birth.
Headnote:
PUBLIC EMPLOYMENT - RESERVATION - MARRIAGE INTO SCHEDULED TRIBE - ENTITLEMENT TO BENEFITS - APPLICABILITY OF SUPREME COURT DECISIONS - RETROSPECTIVITY - FALSE DECLARATION - VALIDITY.
Fact of the Case:
The petitioner, a Gowda Saraswath Brahmin by birth, married a member of the Marati Tribe and claimed to be a member of the Scheduled Tribe for the purpose of securing a job reserved for Scheduled Castes and Scheduled Tribes. The bank, after an enquiry, found that the petitioner had made a false declaration and dismissed her from service.
Finding of the Court:
The court held that the petitioner's claim to be a member of the Marati Tribe was supported by the law as it stood at the time of her appointment, as per the Supreme Court decision in N.E. Horo v. Jahan Ara Jaipal Singh. The subsequent decision in Mrs. Valsamma Paul v. Cochin University, which held that a candidate born into a high caste does not become eligible for reservation benefits upon marriage into a backward caste, could not be applied retrospectively to the petitioner's case.
Issues: 1. Whether the petitioner, by virtue of her marriage to a member of a recognized Scheduled Tribe, became a member of such tribe. 2. Whether the petitioner was entitled to the benefits reserved for Scheduled Castes and Scheduled Tribes. 3. Whether the Supreme Court's decision in Mrs. Valsamma Paul v. Cochin University could be applied retrospectively to the petitioner's case.
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in N.E. Horo v. Jahan Ara Jaipal Singh, which held that a person who has been assimilated into a Scheduled Tribe community may be considered a member of that tribe for the purpose of reservation benefits, even if not a member by birth. 2. The court held that the petitioner was entitled to the benefits reserved for Scheduled Castes and Scheduled Tribes at the time of her appointment, as per the law as it stood then. 3. The court held that the subsequent decision in Mrs. Valsamma Paul v. Cochin University, which held that a candidate born into a high caste does not become eligible for reservation benefits upon marriage into a backward caste, could not be applied retrospectively to the petitioner's case.
Final Decision: The court quashed the disciplinary proceedings and the order of dismissal from service, and directed the reinstatement of the petitioner with full back wages.
( 1 ) PURSUANT to an advertisement published by the Banking Service Recruitment Board in May, 1983, for recruitment to various posts, including the post of clerks, which were reserved for Scheduled Castes and Scheduled Tribes candidates, the petitioner applied for being considered for filling up one of the reserved posts. The petitioner claimed to be a member of the Marati Tribe, which is a recognised Scheduled Tribe, by virtue of her marriage to one K. Gobardhan Naik, and filed a caste certificate issued by the Tahasildar, Puttar, Dakshina Kannada, Karnataka, to that effect on 10th November, 1983. The petitioner was called for an interview and was duly selected for appointment and on 27th January, 1984, she joined her duties as clerk in the Branch office of the bank at Jalsoor, Karnataka.
( 2 ) WHILE the petitioner was working at the Jayanagar Branch of the bank at Bangalore, she was served with a notice dated 7th August, 1996, issued by the Divisional Manager (Vigilance), informing her that although she had filed a certificate that she belonged to the Marati Tribe, in reality she was a Gowda Saraswath Brahmin by birth and that she could not claim to be a member of a Scheduled Caste or Scheduled Tribe merely because she had married a person belonging to a Scheduled Caste or Scheduled Tribe. On the basis of the above, it was alleged that the petitioner had made a false declaration to the Bank for securing an entry into the service of the Bank in respect of a vacancy reserved for candidates belonging to the Scheduled Castes or Scheduled Tribes. The petitioner was asked to submit her explanation in respect of the above within seven days of receipt of the letter.
( 3 ) THE petitioner replied to the aforesaid letter on 2nd October, 1986, stating that by reason of her marriage to a member of a Scheduled Tribe according to the rites of her husband's community, she genuinely was of the view that she belonged to her husband's community. The petitioner referred to the decision of the Hon'ble Supreme Court in the case of N. E. Horo v. Jahan Ara Jaipal Singh, reported in AIR 1972 SC at page 1840, in support of the explanation offered by her.
( 4 ) THE bank did not accept the petitioner's explanation and issued a charge-sheet to her on 8th April, 1987. On completion of the enquiry, the Enquiry Officer came to a finding that the petitioner's claim to be a member of a Scheduled Tribe was incorrect but she had not made such a declaration knowing the same to be false.
( 5 ) THE Disciplinary Authority, however, differed from the conclusion of the Enquiry Officer and held that not only was the petitioner's stand that she was a member of a Scheduled Tribe incorrect, but that she had knowingly made a false declaration to secure an employment with the Bank. The review petition filed by the petitioner was also rejected on the aforesaid findings by the Disciplinary Authority who recommended that the petitioner be dismissed from service. The petitioner was informed that she would be given a personal hearing on the proposed punishment before final proceedings were drawn.
( 6 ) THE instant writ petition is directed against the said findings and recommendation of the Disciplinary Authority. An interim order was passed in the said proceedings giving leave to the Disciplinary Authority to pass a reasoned order, and if any adverse order was passed, the petitioner would be entitled to prefer a departmental appeal before the Appellate Authority which would also be entitled to dispose of the appeal by passing a reasoned order, and, in the event, any adverse order was passed by the Appellate Authority also, no effect was to be given to the same without the leave of the court.
( 7 ) IN terms of the aforesaid order, the petitioner made a representation which was rejected by the Disciplinary Authority which upheld its earlier decision to dismiss the petitioner from service, On appeal, the Appellate Authority concurred with the findings of the
