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2020 DIGILAW 73 (AP)

K. Brahmaiah v. State of Andhra Pradesh

2020-01-29

D.V.S.S.SOMAYAJULU

body2020
JUDGMENT : D V S S Somayajulu, J. Both the writ petitions were taken up for hearing jointly with the consent of learned counsel for the petitioners and the learned Government Pleader representing respondent Nos.1 and 2. 2. The prayer in WP.No.12367 of 2019 is as follows : "To issue a Writ of Mandamus or any other appropriate Writ Order or direction declaring the impugned proceedings R.Dis.Rc.A5/740/2009 dated 13.08.2019 on the file of the Collector and District Magistrate, Kurnool as illegal arbitrary and in violation of Principles of natural justice and Article 16 of the Constitution of India" 3. Learned counsel for the petitioners points out that the petitioners 1 and 2 were appointed through selection in an examination held by the A.P. Public Service Commission in 1984. Both of them, as per the learned counsel, belong to Schedule Tribe (Kammara tribe). In the year 2009, the order impugned was passed by which their Caste Certificate was cancelled. Learned counsel submits that the petitioners were dismissed from service with immediate effect as their Caste Certificate was cancelled. This order is impugned in WP.No.12367 of 2019. 4. In WP.No.15974 of 2019 the proceedings dated 20.09.2018 were challenged. These orders dated 20.09.2018 relate to the appeal filed against the order dated 13.08.2019 which is the subject matter of WP.No.12367 of 2019. 5. Learned Government Pleader appeared and contested the matter by filing counter affidavit. 6. The short and simple point that is urged by the learned counsel appearing for the petitioners is that under Section 5 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short 'the Act'), before the District Collector comes to a conclusion to cancel the Caste Certificate issued to a person, he shall, before publication of the notification of cancellation, give an opportunity to the person to make a representation. Section 5 of the Act is reproduced hereunder: 5. Cancellation of the false Community Certificate: (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes and Backward Classes has obtained a false Community Certificate to the effect that either himself or his children belongs to such Castes. Section 5 of the Act is reproduced hereunder: 5. Cancellation of the false Community Certificate: (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes and Backward Classes has obtained a false Community Certificate to the effect that either himself or his children belongs to such Castes. Tribes or Classes, the District Collector may either suo motu or on a written complaint by any person, call for the record and enquire into the correctness of such certificate and if he is of the opinion that the certificate was obtained fraudulently, he shall, by notification, cancel the certificate after giving the person concerned an opportunity of making representation." 7. Learned counsel for the petitioners argues that if the Collector comes to a conclusion that the Caste Certificate was obtained fraudulently, he shall give a notice to the person likely to be affected a notice and after considering the representation he can publish the notification. Therefore, learned counsel submits that before the notification for cancellation of the Caste Certificate is gazetted, it should be preceded by a representation. He relies upon a judgment of a learned single Judge of this Court U.Sanyasirao v. Government of Andhra Pradesh, (2011) 2 ALT 734 and argues that after the opinion of the District Level Scrutiny Committee is given, the Collector should have given an opportunity to the petitioners. He also relies upon a judgment of a learned single Judge of this Court Duda Ramesh v. State of Andhra Pradesh, rep., by its Secretary to Government Social Welfare Department, (2005) 2 ALT 773 and argues that this Court should interfere. Learned counsel points out that before the final order is passed, an opportunity should be afforded to the petitioners and only thereafter the final order can be passed and published in the gazette. 8. The learned Government Pleader appearing for the respondents on the other hand relies upon the counter affidavit filed, additional written instructions dated 23.01.2020 and also on G.O.Ms.No.58 of the Social Welfare Department published on 16.05.1997. 8. The learned Government Pleader appearing for the respondents on the other hand relies upon the counter affidavit filed, additional written instructions dated 23.01.2020 and also on G.O.Ms.No.58 of the Social Welfare Department published on 16.05.1997. The learned Government Pleader argues on the basis of the Rule 9 of the Andhra Pradesh Scheduled Castes, Scheduled Tribes and Backward Classes Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 Rules (for short 'the Rules) that the proper procedure was followed and that notice was issued in Form-6 in terms of 9(2) of the Rules. He, thereafter, submits that adequate opportunity was also given to the petitioners. Ultimately, learned Government Pleader submits that in the scrutiny held that the certificates of the petitioners were false. 9. Learned Government Pleader relies upon Rule 9(7) of the Rules, which is to the following effect: "As per Rule 9(7) of the Rules, the District Collector shall then decide whether the certificate holder is genuine or fraudulent and in case of his having obtained a Community, Nativity and Date of Birth Certificate fraudulently, the District Collector shall pass an order canceling the certificate issued, within one month from the date of receipt of the findings of the scrutiny Committee and shall issue notification to that effect, to be published in the District Gazette. The District Collector shall also take necessary steps to initiate action against the Competent Authority who issued the Community, Nativity and Date of Birth Certificate to the wrong person, besides taking other specified in Rule 15. He shall communicate the cancellation of the certificate to the educational institution/employer/appointing authority as the case may be forthwith." 10. He argues that in terms of 9(7) of the Rules, the District Collector, shall within one month of the date of the receipt of the findings of the Scrutiny Committee, cancel the certificate by publication in the District gazette. Learned Government Pleader argues that this was precisely done in this case. Apart from that, he relies upon a judgment of the Hon'ble Supreme Court of India reported in Union of India v. Dattatray (Civil Appeal No.1639 of 2008) to argue that once a person secures employment on the basis of the false Caste Certificate, the proper course is to cancel the employment. 11. Apart from that, he relies upon a judgment of the Hon'ble Supreme Court of India reported in Union of India v. Dattatray (Civil Appeal No.1639 of 2008) to argue that once a person secures employment on the basis of the false Caste Certificate, the proper course is to cancel the employment. 11. This Court after considering the submissions made by both the parties notices that essentially there is no dispute between the parties of the procedure that was followed in this case. The counter affidavit filed by the Government clearly deals and sets out the notices that were issued in Form-6 to both the petitioners. The report of the District Scrutiny Level Committee is also filed along with the counter affidavit. Therefore, it is clear that Form-6 notices were issued and that the petitioners appeared before the Committee also. The report of the Committee is also annexed with the counter affidavit. The essential issue involved is, whether a notice is necessary before a final order is published in the gazette canceling the Caste Certificate. 12. Section 5 of the Act has been reproduced earlier. It clearly states that the Collector can (a) suo motu or on the basis of the written complaint (b) call for the record and enquire into the correctness of a certificate. (c) if he is satisfied that the certificate was obtained fraudulently (d) he shall by notification cancel the certificate (e) after giving the person concerned an opportunity of making representation. 13. Therefore, if a plain language interpretation of the section is seen and the section is broken down into its components, it is clear that after the Collector is convinced that the Certificate is obtained fraudulently, he shall (a) give an opportunity to the person concerned of making a representation and (b) cancel the certificate by notification. 14. Learned Government Pleader relied upon the Rules framed under G.O.Ms.No.58 published on 16.05.1997. According to him, Rule 9 (7) of the Rules gives an option to the District Collector to cancel the certificate within one month from the date of receipt of the Scrutiny Committee's report by publication in the gazette. Therefore, he submits that another notice is not contemplated. 15. In reply to this, learned counsel for the petitioners points out that the Rules cannot supersede the sections. Therefore, he submits that another notice is not contemplated. 15. In reply to this, learned counsel for the petitioners points out that the Rules cannot supersede the sections. He points out that the Rule making power is always subsidiary to the legislative power and as the section itself prescribes a notice, the Rules cannot be contrary to the same. Apart from that, he also points out that Rule 9 (9) of the very same Rules relied upon by the Government Pleader provides that the cancellation of the certificate shall be as per section 5 of the Act only. Therefore, learned counsel submits that the power of cancellation can only be exercised by publication in the gazette and as per Section 5 of the Act only. Hence, he argues that before final gazette publication is made, an opportunity of hearing must be given to the petitioners. 16. This Court after hearing both the learned counsel is of the opinion that the learned counsel for the petitioners has made out a point. Rule 9 (9) of the G.O.Ms.No.58 clearly stipulates that before cancellation of the certificate by a gazette publication, the procedure under Section 5 of the Act should be followed. As extracted earlier, after the Collector is convinced that the certificate is not genuine, he can cancel the same by publication in the gazette. This should however be preceded by a notice to the petitioners, so that they have an opportunity of making a representation. 17. As per the settled law, if the statute prescribes the manner in which an Act should be done, it should be done in that manner prescribed or not at all. This is the well known Taylor principle which has been time and again approved by the Hon'ble Supreme Court of Indian and this high Court also. Once the statute itself stipulates that an opportunity to make a representation must be given to the party before making a publication in the gazette, this Court has to hold that the petitioners are entitled to an opportunity at this stage. Even Rule 9 (9) of the Rules tends support to this conclusion. Any number of notices issued prior to this cannot take away the right that is available to the petitioners. 18. Even Rule 9 (9) of the Rules tends support to this conclusion. Any number of notices issued prior to this cannot take away the right that is available to the petitioners. 18. Although the Government Pleader vehemently defended the action of the respondents and argued that a large number of notices given, this Court cannot but hold that those notices under Form-6 were for appearance before the Select Committee. The grievance of the petitioners is about the lack of an opportunity after the report of the Select Committee, and the conclusion of the collector. 19. In that view of the matter, this Court is of the opinion that the petitioners are entitled to a relief as prayed for. As the rules of natural justice were flouted and relevant statutory provisions were also flouted, the writ petition is maintainable and the petitioners are entitled to a relief as prayed for. Since the failure occurred at a particular stage; the proceedings are set aside to that extent only. 20. Hence, the order dated 13.08.2019 by which the collector cancelled the Caste Certificates of the petitioners and the subsequent order dated 20.09.2018 are set aside and the 2nd respondent in both the writ petitions namely, the District Collector is directed to issue a notice to the petitioners in terms of section 5 of the Act and thereafter take a decision on the report of the District Level Scrutiny Committee. It is this decision of the District Collector that should be published in the District gazette. 21. This entire exercise of giving a notice to the petitioners along with the report of the District Level Scrutiny Committee and deciding on the validity of the Caste Certificate after receiving the representation of the petitioners should be completed within a period of two months from the date of receipt of a copy of this order. The petitioners are also directed to immediately file their representation after receipt of the notice and not to stall the proceedings or to seek time on any flimsy grounds. Requests for time should be dealt with strictly. 22. With these observations, both the writ petitions are allowed. There shall be no order as to costs. 23. As a sequel, the miscellaneous applications, if any pending, shall stand closed.