Madavi Eshwari v. The Collector And District Magistrate Adilabad District At

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR WRIT PETITION No. 22959 of 2014 ORDER:

1) Heard learned counsel for the petitioner and learned Government Pleader for Social Welfare.

2) The present writ petition came to be filed with the following prayer:

" issuance of writ of mandamus declaring the impugned proceedings C3/ 4580/ 2012-9 dated 14.01.2014 including the appended notification of even number and date issued by the District Collector are invalid and unconstitutional, arbitrary, opposed to the principles of natural justice, void abinitio besides violative of Articles 14, 16 and 21 of the Constitution of India and also contrary to the judgment in W.P.No.27351 of 2013 dated 20.09.2013 as well as Rev.W.P.M.P.No.45648 of 2013 dated 27.12.2013 and consequently hold that the Agency Area Certificate possessed by the petitioner is perfectly valid and further declare that the petitioner is entitled to be appointed to the post to which she was selected i.e. Forest Beat Officer/ Assistant Beat Officer as the case may be pursuant to the Notification No.44410 of 2009 dated 26.03.2012 with all consequential benefits."

3) The petitioner belongs to Scheduled Tribe-Gond and native of Chintapally Village, Thiryani Mandal. Her community, date of birth as well as the nativity were certified by the Mandal Revenue Officer, Thiryani, through certificate, dated 08.06.1999 in

exercise of power under Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Issue of Community, Nativity and Date of Birth Certificates Act (For short " the Act" ) and the Rules made thereunder. The Government issued notification dated 26.03.2012, inviting applications from eligible candidates for appointments to several posts including Forest Beat Officer/ Assistant Beat Officer. Pursuant thereto, the petitioner applied for the post of Forest Beat Officer/ Assistant Beat Officer claiming to be eligible either in plain area or in agency areas. In the process, she got selected. However, at the time of issuing orders of appointment, the certificates submitted by the petitioner were verified and a doubt was expressed about the genuinity of Agency Area Certificate dated 18.05.2001. The D.S.C.

referred the matter to the District Collector, who inturn referred the matter to the District Level Scrutiny Committee (for short " the committee" ) constituted under the Act and Rules. The Committee issued notice to the petitioner and thereafter submitted a report stating that the certificate dated 18.05.2001 is not a genuine one. Acting upon the same, the impugned order came to be passed canceling the said certificate. The petitioner herein filed O.A. before the A.P.Administrative Tribunal, ventilating her grievance. The said O.A. was dismissed. Hence, the present writ petition came to be filed.

4) Sri J.Nagaraja Rao, learned counsel for the petitioner submits that the certificate dated 18.05.2001 is not referable to the Act and Rules and the impugned order is without jurisdiction.

According to him, the social status as well as the nativity of the petitioner was certified under the certificate dated 08.06.1999 and that the same warrants no interference. He placed on record the orders passed by a Division Bench of this Court, the review order and also the judgment of the Apex Court to show that in identical matters the Court has upheld the plea of the petitioner. 5) Learned Government Pleader for Social Welfare submits that once the Collector has passed an order exercising his powers under the Act, the petitioner has to work out her remedies in accordance with law. He submits that in the earlier round of litigation, the Courts did not consider G.O.Ms.No.4 and hence pleads that the issue is not covered by the earlier orders. According to him, if the said G.O.

was considered, the courts would have definitely taken a different view. 6) The drive initiated by the Government in the year 2012 was to appoint Scheduled Tribe candidates living in the agency areas. It needs to be noted that in none of the Districts in the State, the entire District is notified as agency area. Parts of some Districts are notified as agency areas and remaining parts of such Districts continue to be non-agency areas. The Scheduled Tribes from nonagency areas were getting selected and thereby, the Scheduled Tribes within the agency areas were deprived of the benefit. Therefore, consideration for the appointment to the posts taken up by the DSC was confined to the candidates belonging to the Scheduled Tribes and natives of the agency area.

whether or not a candidate can be treated as resident of agency area, guidelines were also issued. They are to the effect that the candidates or their ancestors must be residents of the agency area atleast from the year 1950 onwards.

7) Admittedly in the instant case the petitioner was born and brought up in Chintapalli village and after verifying the record, the Mandal Revenue Officer, Thiryani issued, Caste, Nativity and Date of Birth Certificate dated 08.06.1999 prescribed under the Act and Rules. The genuinity or otherwise of the said certificate was never doubted by any of the respondents. As observed earlier the only certificate that can be pressed to the Act and Rules is one dated 08.06.1999. A doubt was expressed to the genuinity of certificate dated 18.05.2001, which did nothing morethan reflecting a small facet of what is already contained in the certificate dated 08.06.1999.

As observed by the Division Bench, in view of the certificate referred to above, there was no necessity for the petitioner to submit any other certificate in proof of her nativity and there is no jurisdiction to the Collector to refer the matter to the Committee. It appears to be a case where the whole exercise is arbitrary and genuine scheduled tribe member was unlawfully denied of opportunity being appointed. 8) In order to appreciate the same, it would be useful to refer to the relevant portion of the Division Bench Judgment, review order, the order passed by the Apex Court and G.O.Ms.No.4.

9) It is to be noted that G.O.Ms.No.4 was issued even before the date of filing of writ. No reasons are forthcoming as to why the Government has not brought to the notice of this Court in the earlier round of litigation. It appears that even before the Apex Court, the Government has not produced the said G.O., to show that the order passed by the Division Bench is contrary to the said G.O. But the learned counsel for the petitioner would submit that in the review petition, the G.O.Ms.No.4, dated 09.01.2012 came up for consideration. It is to be noted that this Court in W.P.No.27351 of 2013, while dealing with an identical issue to the case on hand, allowed the writ petition on 20.09.

2013 on the ground that there was no justification in referring the matter to the committee, when the certificate was not at all referable to the Act and the Rules. It was held that the whole exercise was arbitrary and a genuine Scheduled Tribe person was unlawfully denied the opportunity of being appointed. While setting aside the impugned proceedings therein and canceling the resultant notification, the DSC and the appointing authority therein, were directed to consider the case of the petitioner by treating him as Scheduled Tribe, as native of Utnoor village and Mandal and finalise the matter within a period of four weeks.

It was further directed therein, that in case the petitioner was issued orders of appointment, his appointment shall date back to the date on which others have been appointed, for the purpose of seniority but not for emoluments. Subsequently, the State filed Review petition in W.P.M.P.No.45648 of 2013 in W.P.No.

which was dismissed on 27.12.2013, the relevant portion of order, referring to G.O.Ms.No.4 reads as under:

" Though the writ petition was disposed of at the admission stage, it was only after hearing both the parties, at length, and on considering the relevant provisions of law, that the order under review was passed. The Special Rules, no doubt, were framed through G.O.Ms.No.4, dated 09.01.2012, and one of the salient features thereof is that, it is only a Scheduled Tribe person; who is native of that area, that can be appointed as teacher. It was not the case of the first respondent that he must be considered for appointment, though he is not a native. His nativity was certified in the year 2001, and apart from that, a certificate, that fits into the Rules, was issued, on 03.02.2006. It has been clearly mentioned in the order passed by this Court that the Act and the Rules made thereunder are applicable only in relation to the certificate dated 28.05.2001, and the one, dated 03.02.2006 does not at all attract the said provisions.

Assuming that the Act and the Rules made thereunder apply to the issue of certificate also, the order of cancellation came to be passed only in 2013, that too, after the O.A., was filed, whereas the selection process was over in the year 2012. The Act and the Rules contain a clear provision to the effect that, till a certificate issued thereunder is cancelled, the social or nativity status of the certificate holder cannot be doubted.

The petitioners are not able to point out that any of the grounds urged before this Court were not considered, or that any patent error of law or fact has crept into the order. We do not find any grounds to review the order passed by us. The review petition is accordingly dismissed" . 10) Challenging the same, the State has preferred S.L.P. (Civil) No.8206 of 2014, which was also dismissed on 08.08.2014.

11) Further, no basic guidelines/ requirements were either framed or formulated by the Government so as to enable the petitioner to show that either herself/ himself or her parents were residing in agency area since 1950. In other words, the G.O. is silent as to the documents which are required to be produced. Without prescribing the basic requirements, the action of the authorities in rejecting the request of the petitioner on the ground that no proof is produced showing her residence since 1950 in the same area cannot be accepted. On the other hand, the record shows that documents which were produced to show her/ his stay in the agency area, were not considered by the respondents.

12) In the absence of any guidelines being prescribed with regard to the documents to be submitted showing proof of their residence in the agency area since 26th January, 1950, and having regard to the orders passed by the Division Bench of this Court and also in the review petition, the writ petition is allowed setting aside the order dated 14.01.2014 in Rc.No.C3/ 4580/ 2012-9 and canceling the resultant notification. Further, the appointing authority shall consider the case of the petitioner, by treating her to be from agency area and finalise the matter within a period of four to six weeks from the date of receipt of a copy of this order. In case, the petitioner is issued with orders of appointment, her appointment shall date back from the date on which others were appointed, for the purpose of seniority, but not for the emoluments. No costs.

13) Consequently, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

_________________________ JUSTICE C. PRAVEEN KUMAR 27.04.2017 gkv