IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 OP.No. 24955 of 2000(U) ----------------------- PETITIONER(S): --------------- P.M. JOSEPH, AGED 47 YEARS, S/O. PHILIP, OTTAMLAYIL HOUSE, ALANCHERY P.O., AGID, FOOD CORPORATION OF INDIA, NELESWAR, KANNUR. BY ADV. SRI.C.K.SAJEEV SMT.T.B.MINI RESPONDENT(S): -------------------- 1. SENIOR REGIONAL MAMANGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, TRIVANDRUM. 2. ZONAL MANAGER, FOOD CORPORATION OF INDIA, CHENNAI. 3. THE COMMISSIONER AND SECRETARY TO GOVERNMENT OF KERALA, SC/ST DEVELOPMENT DEPARTMENT, TRIVANDRUM. ADV. SRI.VIVEK VARGHESE, SC, FCI GOVERNMENT PLEADER SMT. K.R. DEEPA FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31 /10/2008 , THE COURT ON 31/10/2008 DELIVERED THE FOLLOWING: OP.No. 24955 of 2000 ORDERS ON C.M.P.NOS.42055 OF 2000 & I.A. NO.2718 OF 2005 IN O.P.NO.24955 OF 2000 DISMISSED. 31.10.2008 SD/ S.SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF THE COMMUNITY CERTIFICATE ISSUED BY THE TAHASILDAR, THALASSERY ON 30.8.76. EXT.P2: COPY OF THE APPOINTING ORDER DATED 7.10.76 NO.A1/AS(2) 76. EXT.P3; COPY OF THE ORDER DT. 13.5.88 NO.198/88-E1. EXT.P4: COPY OF THE ORDER DT. 28.7.88 NUMBERED ESTT. 32(20) 81/PF. EXT.P5: COPY OF THE ORDER NO.ESTT.2(1)/92/VOL.II DT. 27.8.1994. EXT.P6: COPY OF THE ORDER NO.101/E1/2000 DT. 10.5.2000. EXT.P7; COPY OF THE ORDER NO.WRC 1/2/2000/PF DATED 3.8.2000. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.24955 OF 2000 ---------------------------------------- Dated this the 31st day of October, 2008 JUDGMENT The petitioner is an employee, under the 1st respondent- Food Corporation of India, who joined service on 5.10.1976. The petitioner is a Christian convert from the Pulayan community. At the time of his appointment in the Food Corporation of India, ‘Pulayan’ community was recognized as a Scheduled Tribe in the State of Kerala for the purpose of reservation in employment. Christian converts from 'Schedule Tribes' were also accepted as Scheduled Tribes. It is recognizing those facts that the petitioner was given appointment as Assistant Grade III in the Food Corporation of India, in the reserved quota for Scheduled Tribes. The petitioner’s community status at the relevant time is proved by Ext.P1. Subsequently, the petitioner was promoted to the post of Assistant Grade-II by Ext.P3 order dated 13.5.1988 in the vacancy reserved for Scheduled Tribes. Still subsequently the petitioner was promoted to the post of Assistant Gr.I by Ext.P5 O.P.No.24955/2000 2 order dated 27.8.1994 by Ext.P5. That promotion was also in the quota set apart for Scheduled Tribes. While so, the promotion granted to the petitioner as Assistant Gr.II and Assistant Gr.I were cancelled by Ext.P6 order dated 10.5.2000. This cancellation was on the ground that by an Amendment Act of 1976, the Scheduled Caste/Scheduled Tribe Order was amended, whereby the ‘Pulayan’ community was shown as ‘Scheduled Caste’ deleting the same from the list of Scheduled Tribes. Christian converts from ‘Scheduled Castes’ were considered only as ‘OBCs’ and therefore, the petitioner’s promotions, after coming into force of the Amendment Act, on 27.9.1977 in the vacancies reserved for ‘Scheduled Tribes’ are illegal. The petitioner is challenging Ext.P6 and the subsequent order Ext.P7 based on Ext.P6. 2. The contention raised by the petitioner is that at the time when he entered service of the FCI, he was validly entitled to reservation benefits as a ‘Scheduled Tribe’ and the amendment dated 27.9.1977 has no retrospective effect and only those persons, who were born subsequent to 27.9.1977 can be denied benefits on the basis of the amendment. 3. In answer to the above contention, the learned counsel for the FCI would submit that the petitioner’s caste O.P.No.24955/2000 3 status has to be decided on the basis of Scheduled Caste/Scheduled Tribe Order as it stands on the day of order of promotion. The promotions given to the petitioner were not based on mere seniority, but to promotion posts reserved for Scheduled Tribe employees exclusively as per communal rotation. In so far as the eligibility for promotion has to be decided based on the law applicable on the date of promotion, the promotion of the petitioner as Assistant Gr.II was on 13.5.1988 and as Assistant Gr.I was on 10.5.2000 that is subsequent to the amendment to the Scheduled Caste/Scheduled Tribe order is wrong. Therefore, only if the petitioner was a person eligible for ‘Scheduled Tribe’ status as on the date of consideration for promotion, the petitioner can validly claim promotion in the quota reserved for the ‘Scheduled Tribes’ is the contention raised by the counsel. 4. I have considered the rival contentions in detail. 5. The facts are not in dispute. Amendment Act came into force on 27.9.1977. The promotions of the petitioners, which are sought to be cancelled by Ext.P6, were effected subsequent to coming into force of the amendment. Of course, any benefit received by the petitioner prior to 27.9.1977 cannot be cancelled on the basis of the amendment. O.P.No.24955/2000 4 But subsequent to 27.9.1977, the petitioner ceased to be recognized as a ‘Scheduled Tribe’ in the State. In view of the amendment on 27.9.1977, the question as to whether a person is entitled to promotion in the quota set apart for ‘Scheduled Tribes’ is to be decided on the basis of the community status as on the date of consideration for promotion. The State cannot have two types of persons in the same community for the same purpose. If that be so, if the contention of the petitioner is accepted, the petitioner would be a ‘Scheduled Tribe’ and his children born subsequent to the amendment would be ‘OBCs’ which would be an anomalous situation. So, on the coming into force of the Amendment Act, all persons in the ‘Pulayan’ community in the State of Kerala cease to be recognized as ‘Scheduled Tribe’ candidates and they would be thereafter recognized only as a ‘Scheduled Caste’ irrespective of whether they earlier enjoyed benefits as ‘Scheduled Tribe’ prior to the amendment. Any subsequent promotion to which the petitioner aspires for in the reservation quota has to be considered only on the basis that he is a ‘Scheduled Caste’ convert and not a ‘Scheduled Tribe’ convert. I am supported in this view by a Division Bench decision of this Court in W.A.No.817/02, wherein the Division Bench took the O.P.No.24955/2000 5 view that from the date of amendment, none of the members of the community already existing or born thereafter would be entitled to continue to be a member of the 'Scheduled Tribe', enjoying benefits applicable to Scheduled Tribe members. In that decision, the Division Bench held thus: “The counsel for the appellant in W.A.No.1364 of 2002 would canvass for the proposition that the action taken by the Corporation is totally unsustainable. He submits that since the petitioner was born as a member of a Scheduled Tribe Community, he should always be treated as such and subsequent change regarding the status of his community should affect only persons who are born into the community after such change. Attractive, though, the argument is, the learned single Judge did not accept the same for convincing reasons. Once the name of the community is removed from the list of Scheduled Tribes. We are of opinion that from that date onwards none of the members of the community already existing or born thereafter would be entitled to continue to be a member of the Scheduled Tribe, enjoying benefits applicable to Scheduled Tribe members. Otherwise it would lead to anomalous results in having two sets of people in the same community, one as Scheduled Tribe and another as Scheduled Caste. Of course because of the change no benefits already accrued to them prior to the date when the community had been taken out of the list of Scheduled Tribes can be taken away. In the circumstances, we are satisfied that no interference is called for in respect of that finding of the learned single Judge”. O.P.No.24955/2000 6 That being so, I do not find any merit in the original petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd