Full Judgment
R. SATAPATHY, ADMINISTRATIVE MEMBER
The above application is filed under Section of 19 of Administrative Tribunal’s Act 1985 seeking the following relief:
“(i) To call for the records of the 2nd respondent pertaining to his order which is made in No.B2/Staff/AP/05 dated 25/29.11.2010 and set aside the same, consequent to;
(ii) direct the respondents to grant MACP benefit to the applicant at part with his juniors.”
2. The brief facts are as follows:
The applicant belongs to ST community. He got appointment in the respondents department against the quota reserved for ST community. Without properly conducing inquiry to find out the community status of the applicant, the respondents have removed the applicant from service from time to time. The applicant was reinstated into service from 28.11.2005 as per the order of the Hon’ble High Court, Madras made in W.P.No.20174 of 2005 dated 19.10.2005. The respondents are taking time to find out the community status of the applicant through the competent authority. The applicant is entitled to up-gradation benefit under MACP scheme. But it is denied, alleging that an enquiry is pending against the applicant. But there is no such enquiry pending against the applicant.
3. The main grievance of the applicant in this OA is that the official respondents i.e. The Department of Postal Services are not granting him MACP. Whereas his juniors have been granted the said benefit.
4. Shri. R. Malaichamy appeared for the applicant and Shri. M. Venkkateswaran appeared for the respondents. The learned counsel for the applicant Shri. R. Malaichamy states that the ST certificate issued to the applicant based on which he obtained his initial appointment has not yet been cancelled by any authority. It is true that the disputed facts with regard to the genuineness of the certificate is still pending scrutiny before the Committee. In this connection he has drawn our attention to the order of the Hon’ble High Court of Madras in Writ Petition No.20174 of 2005 dated 19.10.2005. In Para 5 of the said order of the Hon’ble High Court it is observed as follows:
“In such circumstances, we are of the view that it is for the concerned Committee to go into the genuineness of the community certificate/community status of the 1st respondent herein. On this ground, we set aside the impugned order of the Tribunal dated 17.08.2004 made in O.A.No.72 of 2004 and the petitioners/Department are directed to reinstate the 1st respondent herein in the same position. However, the petitioners/Department are permitted to make a reference to the concerned Committee in respect of the verification of the community certificate/status of the 1st respondent herein (A. Periasamy). On such reference is made, the Committee is directed to consider and dispose of the same within a period of six months, thereafter. Depending on the outcome of the proposed enquiry by the Committee, the petitioners are free to take appropriate action. This Writ Petition is disposed of accordingly. No costs. Consequently connected WPMPS are closed.”
5. From the above it is very clear that it is for the respondent department to get the disputed certificate verified and thereafter pass orders. As on today there is no charge sheet pending against the applicant and he is also eligible for promotion. Therefore he has satisfied all the conditions for grant of MACP.
6. Per contra the learned counsel for the applicant states that since the verification of the ST certificate is pending before the District Level Committee headed by the District Collector, Tiruchirappali they are not able to grant him any MACP. It is also further stated by the respondents that the District Collector has been reminded on various occasions. Under such circumstances unless the verification of the certificate is completed no relief can be granted to the applicant.
7. We have gone through the records and perused the orders of the Writ Petition cited supra. It may be a fact that the ST certificate produced by the applicant is subject matter of verification. However, that cannot be a ground to deny the benefit of MACP to the applicant. The respondents have not produced any Rule or Judicial pronouncement in support of their statement. Merely because the certificate of the applicant has been sent for verification to the Committee it cannot be said that applicants legitimate service rights can be denied to him.
8. It is also very pertinent to mention here that the State Government of Tamil Nadu in GO (2D) No.108 dated 12.09.2007 issued by Adi Dravidar and Tribal Welfare (CV-1) Department, Government of Tamil-Nadu have constituted a State Level Scrutiny Committee to scrutinice the genuineness of the Community Certificate as ST and to pass final orders. The said Committee consists of the following persons:
1. Secretary to Government Adidravidar and Tribal Welfare Department Chairman
2. Director/Commissioner Tribal Welfare Member Secretary
3. An Anthropologist Member
9. It is for the respondents to peruse the matter properly and to see to it that the competent Committee constituted by the State Government takes proper decision with regard to the verification of the ST Certificate produced by the applicant. 10. The Hon’ble High Court of Madras in the order cited supra has already held that the applicant is reinstated into service to the position from which he was suspended. Thereafter we do not find any charge sheet or any disciplinary proceedings have been instituted against the applicant. The only issue relating to the applicant is that is his community certificate is under verification. This according to us is not a bar to grant MACP.
11. It is a settled principle in service law that a promotion/MACP can be denied only if the applicant is;
(a) Under suspension
(b) Facing criminal prosecution
(c) Facing a departmental disciplinary proceedings.
In the instant case, none of the above facts apply to the applicant. The impugned order does not state any reason other than pendency of scrutiny of the S.T. Certificate. Under such circumstances the impugned order is liable for quashing.
12. For the aforesaid reasons the impugned order dated 25.11.2010 marked Annexure A9 is set aside and the respondents are directed to grant MACP/Promotion to the applicant on par with his juniors. The respondents are directed to pass appropriate orders in the above lines within a period of 6 weeks from the date of receipt of copy of this order. However, before parting with the issue, we would like to make it clear that the respondents are at liberty to take action as per law on the conclusion of the verification of the genuineness of the ST certificate.
13. OA is allowed.