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Andhra High Court · body

2007 DIGILAW 1155 (AP)

Madi Sri Vaishnavi v. N. T. R. University of Health Sciencess

2007-11-27

GODA RAGHURAM

body2007
Order 1. Head Sri P. Balamukunda Rao, learned counsel for the petitioner; Sri D.V. Nagarjuna Babu, learned standing counsel for the first respondent and the learned Government Pleader for Social Welfare for the second respondent. 2. The writ petition is filed aggrieved by the Memo Rc.No.1907/2007/TR/VC.1 dated 28-07-2007 issued by the second respondent directing (requesting) the first respondent to 'keep in abeyance' the seat allotted to the petitioner for the M.B.B.S. Course. The petitioner claims to belong to the 'Bagata' tribe – a Scheduled Tribe - under a Presidential Notification by the Scheduled Castes and Scheduled Tribes Order. She claims that her father entered service in the railways and her paternal uncles, three of them, have studied up to Intermediate and are in public service and that 'Bagata' is reflected as their caste in the service records. The petitioner appeared for the Engineering and Medical Common Entrance Test, 2007 (for short 'EMCET) and was allotted a seat in the Kurnool Medical College, Kurnool. She also tendered the fee therefor, but was not issued an allotment letter. On enquiry, she came to learn that pursuant to a memo of the second respondent dated 28-07-2007 addressed to the first respondent, the first respondent has kept the seat allotted to the petitioner in abeyance and refused her admission in the Kurnool Medical College. The petitioner has submitted along with her application for admission, a certificate issued by the Mandal Revenue Officer, Tirupathi, Chittoor district certifying her as belonging to 'Bagata' community which is a recognized Scheduled Tribe. 3. The State of Andhra Pradesh enacted Andhra Pradesh (SC, ST & BCs) Regulation of Issue of Community Certificates Act, 1993 (for short 'the Act'). Section 5 of the Act provides for 'cancellation of false Community Certificate and empowers the District Collector either suo motu or on a written complaint by any person, to call for the record and inquire into the correctness of any certificate, if he is of the opinion that the certificate was obtained fraudulently. The Collector is thereupon authorized, by notification to cancel the certificate after giving the person concerned an opportunity of making a representation. Complementary powers in this regard also inhere in the State Government under sub-section (2) of Section 5 of the Act. The Collector is thereupon authorized, by notification to cancel the certificate after giving the person concerned an opportunity of making a representation. Complementary powers in this regard also inhere in the State Government under sub-section (2) of Section 5 of the Act. It is not the case of either of the respondents that the community certificate tendered by the petitioner in support of her claim to belong to 'Bagata' community, a Scheduled Tribe, is fraudulent per se. 4. As is apparent from the second respondent's memo dated 28-07-2007 addressed to the first respondent, the second respondent doubts the claim of the petitioner to the S.T. status on the ground that her surname is uncommon amongst 'Bagata' tribe; the petitioner does not know the tribal dialect; the petitioner's traditional habitat of Tirupathi is not the natural habitat of 'Bagata' tribe; the petitioner could not substantiate her claim with oral evidence about her community during the course of counseling (at which the second respondent was also present); the petitioner is believed to be an offspring of non-tribal mother and a tribal father; the community certificate issued by the M.R.O./Tahsildar/R.D.O. is 'not in order'; and there is a high incidence of false claims under the 'Bagata' tribe. This memo advised the petitioner to meet the second respondent along with her parents or any other elderly relative who has full knowledge about her claimed community to furnish oral and documentary evidence to substantiate her claim of social status as Scheduled Tribe. She was asked to bring the specified documents for verification by the second respondent. In conclusion, this memo directs the first respondent to keep the petitioner's seat in abeyance and not to accept the fee from the petitioner until clearance certificate is issued by the second respondent regarding her claim of belonging to the Scheduled Tribe. 5. Ignorance of law is no excuse nor is it a legitimate basis for administrative action. The respondents are not an exception to this established doctrine. It should have occurred to the first respondent even on a casual perusal of the provisions of the Act that the second respondent has no manner of power or authority to interdict the petitioner's admission on the basis of the second respondent's surmises and conjectures. The respondents are not an exception to this established doctrine. It should have occurred to the first respondent even on a casual perusal of the provisions of the Act that the second respondent has no manner of power or authority to interdict the petitioner's admission on the basis of the second respondent's surmises and conjectures. The speculative exercise by the second respondent could only be pursued under the substantive and procedural discipline under the provisions of the Act and in particular Section 5 thereof. The second respondent is not invested with power, authority or jurisdiction - legislative or executive - to interdict or effect eclipse of the formal certificate issued by the competent authority verifying the community of a citizen. Such certificate is during its efficacy a conclusive proof that the person certified belongs to the community certified. No power what-so-ever inheres in the second respondent to suspend the trajectory of the certificate. 6. The learned Government Pleader for Social Welfare has not placed before this Court any authority - legislative or precedential - which justifies the exercise of the vagrant power by the second respondent in issuing a directive to the first respondent to keep the seat allotted to the petitioner in abeyance or for directing the first respondent not to accept fee from the petitioner until a clearance is given by the second respondent. Learned Government Pleader is unable to place before this Court any lawful authority for interfering with the educational pursuits of the petitioner until a clearance is granted by the second respondent. 7. The second respondent is shown to have no power, authority or jurisdiction to issue any clearance certificate. The second respondent is not also the competent certifying authority for issuing a community certificate under the provisions of the Act. Under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes & Backward Classes) issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (for short 'the 1997 Rules') as amended in G.O.Ms.No. 79 Social Welfare (CW2) Department dated 24-07-2002, the second respondent has been consecrated a limited domain to inquire into the correctness of any community, nativity and date of birth certificate already issued, if there be a written complaint by any person, a request made by an employer, educational institution or an appointing authority or suo motu. Rule 10 of the 1997 Rules as amended enables the second respondent on a prima facie satisfaction that a certificate is obtained fraudulently and on a preliminary enquiry to refer the case to the concerned Collector or the Government for cancellation of the certificate already issued as per the procedure spelt out in Section 5 of the Act. 8. Even on an expansive construction, this provision of the 1997 Rules does not consecrate any power, authority or jurisdiction in the second respondent to issue directives to an educational institution such as the first respondent to keep the seat in abeyance. The directive of the second respondent as contained in the memo dated 28-07-2007 is therefore patently incompetent and the product of a fertile imagination without any substrate in lawful authority. It is tragic that the first respondent never enquired as to the authority of the second respondent to issue such a directive and instead considered it appropriate to subscribe to and follow an unlawful order by an incompetent authority. 9. As a consequence of such conjoint conduct of the respondent Nos. 1 and 2, the petitioner is deprived of the lawful opportunity to pursue her academic career in the under graduate medical course and despite having a facially competent and valid certification that verifies her as belonging to a Scheduled Tribe community. 10. On the analysis above, the conduct of the respondents in denying the petitioner the opportunity to pursue the M.B.B.S course in Kurnool Medical College, Kurnool is patently arbitrary, illegal. It is so declared. The directive addressed by the second respondent to the first respondent by the memo dated 28-07-2007 insofar as it directs the first respondent to keep the seat allotted to the petitioner in abeyance and that no fee shall be accepted from the petitioner until clearance by the second respondent is also patently incompetent and misconceived. 11. The Memo bearing Rc.No. 1907/2007/TR/VC.1 dated 28-07-2007 is accordingly quashed pro tanto. The writ petition is allowed. The first respondent shall forthwith take all necessary steps to ensure that the petitioner is admitted to the M.B.B.S. course as per the allotment of a seat in her favour. 12. It is represented by the learned standing counsel for the first respondent that the classes for the first year M.B.B.S. course have formally commenced from 1st October, 2007. The first respondent shall forthwith take all necessary steps to ensure that the petitioner is admitted to the M.B.B.S. course as per the allotment of a seat in her favour. 12. It is represented by the learned standing counsel for the first respondent that the classes for the first year M.B.B.S. course have formally commenced from 1st October, 2007. In the circumstances, and as the deprivation of the course of instruction in M.B.B.S. by the petitioner is solely attributable to the grossly negligent and unlawful conduct of the first and second respondent, should the petitioner suffer any loss in the academic year on account of shortage of attendance, the first respondent shall take appropriate and lawful measures to grant condonation as is appropriate to the circumstances. In case the lawful authority does not extend to condonation of attendance, any loss or damage suffered by the petitioner, as is relatable to the negligent conduct of the first and second respondent in interdicting her academic career at the commencement of first year M.B.B.S. course, may be liable to be compensated by these respondents and the petitioner shall always be at liberty to pursue appropriate remedies for recompense/restitution/damages against these respondents for unlawful and arbitrary administrative conduct leading to a pejorative impact on her right. 13. As the respondents have interdicted the pursuit of the academic course by the petitioner without any lawful authority or even a scintilla of jurisdiction, the writ petition is allowed with costs of Rs.2,500-00 (Rupees two thousand five hundred only) each payable by respondent Nos. 1 and 2, to the petitioner. However, it is always open for the first respondent to treat the petitioner's admission as provisional subject to proceedings, if any initiated under the provisions of the Act.