MUKUL MUDGAL, J. -
(1.) THIS writ petition challenges the orders of the Central Administrative Tribunal, dated 31st May, 2004 and in particular the review order dated 12th July, 2004. The facts of the case eloquently speak about the callous attitude of the respondents in dealing with the aspirations of the Scheduled Tribe candidate that too belonging to the North -East State of Manipur.
(2.) THE petitioner's case was as follows:
(a) On 21st September, 1951, the Government of Manipur had issued a notification and recognized 26 Tribes as Scheduled Tribes. On 7th August, 1993, the Competent Authority i.e. the Executive Magistrate after making due enquiries came to the conclusion that the petitioner belonged to Smite Scheduled Tribunal Community and accordingly issued a certificate dated 7th August, 1993 in favor of the petitioner.
(b) Pursuant to the aforesaid certificate issued by the Competent Authority to the petitioner, the petitioner appeared in interview for selection to the post of Surgeon in the non -teaching specialist Sub Cadre of Central Health Service on 7th January, 1999 and was appointed as Special Cadre II, Post of Surgeon in the Non -teaching specialist Sub Cadre of Central health Services.
(c) On 26th October, 1999, a memo was issued to the petitioner on the allegation that on verification the petitioner was not found belonging to the Scheduled Tribe and an Explanationn was consequently sought for from the petitioner. On 26th July, 2000, the Deputy Commissioner Chaura Chandpur submitted a verification report to the respondent No. 3 after due enquiry and verification through the Sub Divisional Officer, Thanlon Sub Division and certified that the petitioner belonged to the Scheduled Tribe by birth and the certificate issued in favor of the petitioner was genuine and legal.
(d) On 28th July, 2000, the office of the Deputy Commissioner, Churachandpur, sent the following communication to the petitioner: GOVERNMENT OF MANIPURO/O THE DEPUTY COMMISSIONER: CHURACHANDPUR NO. (...illegible....)Chaurachandpur the 28th July, 2000To,Dr. Homeshwar TongbramSurgical Specialist,Sanjay Gandhi Memorial HospitalMangolpuri,New Delhi 110 003.Subject: Scheduled Tribe Certificate. Sir, I am to refer to your claim that you belong to the Simte Tribe, which is one of the ST and to say that attempt to verify the claim has led to diverse findings. To enable the matter to be settled finally, you are requested to undergo a DNA comparison with your claimed natural mother and your adoptive father. Kindly indicate your willingness by the 30.8.2000. If no response is received, it will be presumed that you are not willing to undergo the highly sensitive test and your claim will be rejected. On receipt of your willingness, necessary steps will be taken to have the test done in the best Institute in the country and this will settle the matter once and for all. Yours faithfully Sd/ - Dr. R.K. Nirmai Singh Deputy Commissioner Churachandpur (e) The petitioner immediately agreed to the said DNA test on 16th August, 2000 by the following communication: To,Dr. R.K. Nirmai SinghDeputy CommissionerChurchandpur, ManipurSubject : Scheduled Tribe Certificate Sir, Kindly refer to your letter No. DC(CCP)/JDL/96 -16 dated 28.7.2000 on the subject cited above and also directed me to indicate my willingness to undergo the highly sensitive test of DNA comparison with my natural mother and my adoptive father. In this connection, I would like to inform that I am willing to undergo the highly sensitive DNA test, which can be done anywhere in India. In may also be pertinent to mention here that my natural mother is still alive and at present living at village and my village and my adoptive father had expired in the year 1991. I would also like to inform and request you that all the expenditure incurred on the DNA test shall be borne by the Department at your end. Kindly acknowledge the receipt of this letter. Thanking you, Yours faithfullySd/ -16.8.2000 (Dr. HOMESHWAR TONGRBAM) Quarter No. 3, Type -II, Minto Road, New Delhi 110 002.
(f) Even though the DNA test was sought by the respondents and agreed by the petitioner on 16th August, 2000, it is shocking to note that even up to date the said DNA test has not been conducted and in the meanwhile, the petitioner's mother has passed away on 9th August, 2004.
(g) In the meanwhile, the petitioner was promoted to the post of Specialist Grade II (Senior Scale) on 27th November, 2001. On 20th May, 2003, another letter was sent by the petitioner to the Deputy Commissioner, Government of Manipur, stating as follows: To, The Deputy Commissioner,Government of Manipur,Churachandpur, Manipur,Sub: DNA Matching test. Sir, Please refer to your letter No. DC(CCP)/Jdi/96 -16 dated 15.3.2003 on the subject cited above, in this connection I would like to inform you that discreet verification and local inquiry appears to have already been conducted by the Office of Sub -Divisional Officer, Thanlon Sub -Division in the month of May and June, 2000 and the report appears to have been submitted to you by the Sub -divisional officer in the month of July, 2000 with the remarks that I belong to Smite tribe by birth which is recognized as one of the Scheduled tribes in Manipur as per the Govt. of India Notification dated 21st September, 1951. I would like to request you the copies of correspondence between the Ministry of Health and Family Welfare, Nirman Bhawan, Govt. of India with your Office regarding the verification of my status as Scheduled Tribe. As per the Freedom of Information act, 2002 No. 5 of 2003 notified by the Ministry of Law and Justice (Legislative Department), Govt. of India which extends to the whole of India except the State of Jammu and Kashmir in which it is obligatory on your part to supply the required information or records which includes any documents, manuscripts and files within 30 days of the receipt of the request. It is requested that the required information of your Office correspondence including the report of the Sub -Divisional Officer, Thanlon Division may kindly be sent to me. If the documents are prized documents I am ready to pay cost of the documents. As regards the DNA test I am willing to anywhere in India at your own cost as the onus of providing any bonafide Scheduled Tribe status is on your part and not on mine. It may not be out of place to mention that this is the first time in the history of modern India that such kind of test is being conducted to determine the genuineness of my scheduled tribe status. My belonging to Simte Tribes of Manipur cannot be questioned as I belong to the said tribe by birth and not by legal adoption. I was brought up by Sh. Krishna, a Manipuri Timber Contractor at Imphal with the consent of my parents when I was about 5 years of age. It is true that I am a Scheduled Tribe by birth though I was raised up in the non -scheduled Tribe environment. This is only harassment by non -Scheduled Tribe people of the Scheduled Tribes and it is requested that matter may be closed immediately or withdrawn. If any action detrimental to my status of being Scheduled Tribe is taken against me I shall file CWP in the Hon'ble Central Administrative Tribunal, Principal Bench New Delhi at your own cost. Yours faithfully Sd/ - (HOMESHWAR TONGBRAM) Quarter No. 3, Type -II Minot Road, N Delhi 110 002
(h) On 20th January, 2004, based on the premise that the office cannot confirm that the petitioner belongs to the Scheduled Tribes, the services of the petitioner were terminated with immediate effect. The said termination of the services was challenged before the Tribunal in OA No. 326/2004 leading to the impugned order dated 31st May, 2004 of the Tribunal with the following directions:
13. Since it was stated that the mother of the applicant was available and she is a Scheduled Tribe, the present application is disposed of with the following directions:
a) Applicant shall undergo the DNA test. The State should bear the initial expenses. Applicant shall be responsible to make available the necessary persons for the said test. Other it shall be presumed that he is not willing to undergo the same.
b) If the DNA test is in favor of the applicant, the State shall bear expenses otherwise the applicant would be liable to bear the expenses which can be recovered in accordance with law. In case the applicant is held to be a Scheduled Tribe, necessary action shall be taken in accordance with law.
(i) Due to the delay in holding of the DNA test by the respondent the petitioner preferred a review application being R.A. No. 172/2004 for review of the order dated 31st May, 2004 with the following prayers:
c) the respondents are directed to fix up a date preferably a date within 15 days for taking blood samples of the applicant and his mother Smt. Huiman at New Delhi and send the same to any competent hospital/ Laboratory in any part of the country for conducting DNA test. All the formalities would be completed by the respondent within a period of one month. In case there would be failure on the part of the respondents to take steps or to perform the DNA test within the period of one month, it would be presumed that the respondents are not willing to perform the DNA Test.
d) The impugned order dated 20.1.2004 is set aside and the applicant is reinstated in the service in continuity of his service with all consequential reliefs.
(3.) THESE review/modification was sought on the averment made in the review petition, wherein the petitioner has made a grievance of the fact that inspire of the directions given on 31st May, 2004, the DNA test was not conducted and the petitioner was always ready and willing to have the said test conducted upon his mother and only sought fixing of the specific date. The Tribunal has erroneously rejected the very reasonable prayer made by the petitioner to fix the date for DNA test and holding of the same within the fixed time. This has led to the present writ petition.
The petitioner was in fact not really aggrieved by the order dated 31st May, 2004, he was only aggrieved by the fact that the mandamus given in the said order of 31st May, 2004 was being made infructuous by the respondent by not conducting the DNA test within a specified time and expeditiously.;