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2021 DIGILAW 637 (AP)

P. Kumar, S/o Vasantha Rao v. State Of A. P.

2021-10-01

KONGARA VIJAYA LAKSHMI

body2021
ORDER : As all these writ petitions are filed questioning the similar impugned notice dated 07.01.2019 issued by the Chairman & Joint Collector, District Level Scrutiny Committee (DLSC), Kakinada, East Godavari District, directing the petitioners to appear for re-enquiry, they are being disposed by a common order. 2. Impugned notice dated 07.01.2019 was issued to all the writ petitioners under Form-VI of A.P. (Scheduled Castes, Scheduled Tribes and Backward Classes) Issue of Community, Nativity and Date of Birth Certificates Rules 1997 (for short ‘Rules of 1997’) and the said rules were issued in exercise of powers conferred by sub-section (1) of Section 20 of A.P. (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (Act 16 of 1993). 3. Case of the petitioners in all these writ petitions is that, they were issued valmiki ST caste certificates in the year 2018 and basing on some fake complaint, impugned notices under Form VI were issued to all the writ petitioners, contemplating de nova enquiry into the caste certificates; parents of the petitioners were also issued Valmiki scheduled tribe caste certificates; notices do not disclose the basis of the said enquiry and the respondents ought to have verified the genuineness of the said complaint before issuance of notices to the petitioners; according to Rule 5(i) of the said Rules of 1997, the Competent Authority alone shall refer the matter to the Scrutiny Committee in doubtful claims and in the present case, there is no doubt entertained by the Competent Authority and prayed to set aside the impugned notice dated 07.01.2019. 4. When WP Nos.1052, 1685, 1723, 1728, 1739, 1744, 1753, 1776 of 2019 came up for admission, interim stay of all further proceedings until further orders were granted. Basing on the same in similar writ petitions i.e., WP Nos.1938, 1939, 1940, 1941, 1942 and 1943 of 2019, interim orders were granted on 05.03.2019 and in WP Nos.3723, 3761, 3762 and 3764 of 2019 on 20.03.2019. 5. Basing on the same in similar writ petitions i.e., WP Nos.1938, 1939, 1940, 1941, 1942 and 1943 of 2019, interim orders were granted on 05.03.2019 and in WP Nos.3723, 3761, 3762 and 3764 of 2019 on 20.03.2019. 5. Counter-affidavit along with vacate stay petition was filed by the Collector, East Godavari District, stating inter-alia that Adivasi Samkshema Parishad filed a complaint before the Collector, alleging that the revenue authorities are issuing several bogus scheduled tribe caste certificates in all the seven mandals of Rampachodavaram ITDA area, namely, Rampachodavaram, Devipatnam, Maredumilli, Gangavaram, Addateegala, Y.Ramavaram and Rajavommangi, due to which much injustice is caused to the original tribal people and requested to stop issuance of caste certificates without causing proper enquiry; on 20.10.2018, the tribes from the above said mandals have led a procession to the office of the Project Officer, ITDA, Rampachodavaram and started agitation against the then Tahsildar, Rajavommangi and other revenue officials who are responsible for issuance of bogus caste certificates in Grama Sabhas in Rampachodavaram Revenue Division; the then Joint Collector, East Godavari conducted a meeting with Adivasi Sanghams of Rampachaodavaram Division and assured that the caste certificates issued from 01.04.2018 would be verified and accordingly, teams have been constituted with five Tahsildars for verification of the Scheduled Tribe Caste certificates issued in Rajavommangi Mandal and they were asked to submit report to the Project Officer, ITDA and accordingly, the above team of Tahsildars have conducted enquiry with regard to the caste certificates issued from 01.04.2018 in the office of the Rajavommangi Mandal and submitted a report to the Project Officer, ITDA, who in turn submitted a report to the District Collector on 23.12.2018; according to the said report, certificates were classified into three categories; first category is where original files could not be traced in the Tahsildar’s office of Rajavommangi, which is a ground to suspect foul play in so far as 255 certificates and in two cases, certificates issued were cancelled by the District Level Scrutiny Committee and the third category is with regard to 123 certificates, where strong objections were received by the Tahsildars during local enquiry; in view of the said report, examination of all the certificates by the District Level Scrutiny Committee became inevitable; as the caste certificates were issued without following the procedure contemplated under the Act 16 of 1993 and without verifying the supporting documentary evidence as per the guidelines issued under the Rules, disciplinary proceedings were initiated by the Collector against the concerned Tahsildars and the Joint Collector as Chairman of the District Level Scrutiny Committee, has conducted the enquiry on 19.01.2019, 23.01.2019, 25.01.2019 and 30.01.2019; when the said enquiry is pending, another organization by name ‘Thurpu Godavari Valmiki Sangham’, filed a representation before the Chairman, District Level Scrutiny Committee stating that Valmiki is one of the sub sect of hill tribes and the certificates were issued after thorough house to house verification, who were having permanent residence in the Agency Tracts before 1956 and under the guise of the complaint, they are being harassed and that there is no need to conduct further enquiry in the matter. It is further stated that the District Level Scrutiny Committee has not concluded the enquiry and the District Collector will give an opportunity to the writ petitioners to represent their case before passing orders and that the petitioners have got an alternative remedy of appeal and revision before the District Collector under Sections 7 and 8 of the Act 16 of 1993 and prayed to vacate the interim direction. 6. Reply-affidavit is filed by the petitioners stating inter-alia that the respondents did not conduct enquiry against the certificates which were issued in other Mandals and they are conducting enquiry only with regard to Rajavommangi Mandal; petitioners are not aware of the enquiry conducted by the Tahsildars; unless the report of the Project Officer, ITDA which is submitted to the District Collector, is made available to the petitioners, they cannot raise proper objections on the same; many surnames of Valmikis in East Godavari Agency Tracts, such as ‘Gorrela, Duda, Ravadi, Sosala, Churaka, Galagadda, Dumanthu and Borra’ tally with the surnames of Valmikis of Chinthapalli, G.Kotha Veedhi and Koyyuru Mandals of Visakhapatnam Agency Tracks; the certificates issued to the petitioners are in accordance with the provisions of Act 16 of 1993 and the Rules issued under G.O.Ms.No.58 dated 12.05.1997; pursuant to the notice, East Godavari District Valmiki Sangam submitted a representation dated 22.01.2019 requesting to stop the enquiry insofar as permanent certificate holders are concerned. 7. Heard Sri G. Jaya Prakash Babu, learned senior counsel, representing Sri G.R. Sudhakar, learned counsel for the writ petitioners and Sri K. Venkatesh, learned counsel for the petitioner in WP No.1052 of 2019 and the learned Government Pleader appearing for the respondents. 8. Form VI Notice in accordance with the Rules of 1997 reads as follows: “Form – VI Notice To Sri/Smt/Kum ... Village .... Mandal ... District, Whereas a complaint has been received by this Office alleging that you have obtained ST/SC/BC Community, Nativity and Date of Birth Certificate from…….(specify the authority who issued it) fraudulently, and whereas I have reason to believe that you obtained ST/SC/BC Certificate for yourself/for your son/daughter fraudulently even though in reality you do not belong to any Scheduled Tribe/SC/BC. Now, therefore, you are hereby directed to attend enquiry regarding your community claim on ... (date) at ... (time) at ... (place) without fail. Now, therefore, you are hereby directed to attend enquiry regarding your community claim on ... (date) at ... (time) at ... (place) without fail. You are required to furnish all the documentary evidence in support of your community claim on the said date failing which the Scrutiny Committee will finalise its recommendations based on the material/documents/evidence made available to the committee by the District Collector. You may bring your parents/guardian to assist you in the enquiry. Date: Place: Chairman of the Scrutiny Committee (Joint Collector) (Seal)” Form VI notice given to the petitioners, reads as follows: “Ref.C5/M/104/2018,Dt.07.01.2019, Collectorate, Kakinada Form – VI Notice Though you doesn’t belong to Scheduled Tribe Community, you have obtained false Scheduled Tribe Community Certificate from the Tahsildar of Rajavommangi. Therefore, District Level Scrutiny Committee has decided to enquire in the said allegations. Therefore, you are directed to attend before the Scrutiny Committee and Project Officer, I.T.D.A. in the office at Rampachodavaram at 02.00 hours on 30.01.2019 along with all the entire records to prove your claim. If you failed to attend before the Scrutiny Committee, the Scrutiny Committee will decide your status on the basis of the records available and refer the matter to the District Collector for approval. Sd/- A Mallikarjuna, District Level Scrutiny Committee and Joint Collector, East Godavari District, Kakinada” 9. Sri G. Jaya Prakash Babu, learned senior counsel submits that Form VI notice issued to the petitioners is not in accordance with the Form-VI stipulated under the Rules of 1997. He submits that the words ‘failing which the Scrutiny Committee will finalize its recommendations based on the material/documents/evidence made available to the committee by the District Collector’ are missing in the notice issued to the petitioners and that the impugned notice says that ‘if you fail to attend before the Scrutiny Committee, the Scrutiny Committee will decide your status on the basis of the records available and refer the matter to the District Collector for approval’. 10. Even though exact words are not used in the notice, sum and substance of the notice is that if the petitioners fail to attend the enquiry before the Scrutiny Committee, the committee will decide the issue basing on the material available. 10. Even though exact words are not used in the notice, sum and substance of the notice is that if the petitioners fail to attend the enquiry before the Scrutiny Committee, the committee will decide the issue basing on the material available. Even the form contemplated under the Rules is also to the same effect and in view of the same, it cannot be said that the Form VI notice issued to the petitioners is not in accordance with the Form-VI under the Rules of 1997. 11. Section 5 of Act 16 of 1993 deals with ‘cancellation of false community certificate’. Sub-section (1) of Section 5 of the Act reads as follows: “(1) Where, before, or after the commencement of this Act a person not belonging to any of the Scheduled Castes, Scheduled Tribes or 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: Provided that where an enquiry into the genuineness of a community certificate issued prior to the commencement of this Act has commenced and is pending at such commencement, the record thereof shall be transferred by the concerned authority to the District Collector and he shall continue the enquiry and conclude the same under this sub-section.” Rule 4 of the Rules of 1997 deals with the ‘procedure for application’ to obtain a certificate under the Act. Rule 5 of the Rules of 1997 deals with the procedure for verification before issuing caste certificate. In case of doubtful claim, the procedure is given at sub-clause (i) of Rule 5, which reads as follows: “(i) The Competent Authority, in the case of doubtful claims, shall refer the matter to the Chairman of the Scrutiny Committee formed at the District level under Rule 8 i.e., Joint Collector of the District, for the recommendations of the Committee, with regard to the issue of the community, nativity and date of birth certificate as applied for by the applicants. On receipt of the recommendations of the Scrutiny committee, the competent Authority shall accordingly confirm or reject the claims of the applicants.” Rule 7 of the said Rules deals with ‘Scrutiny and Review Committee (State Level)’. The District Level Scrutiny is mentioned at sub-rule (d)(1) of Rule 8, which reads as follows: “(d)(1) The Scrutiny Committee, on receipt of the cases referred to it by the Competent Authority under Rule 5(i), shall conduct enquiry regarding the doubtful claims, by giving notice in Form V to the applicant, within the period specified in the notice. This period should not be less than 15 (fifteen) days from the date of service of the notice on the applicant and in no case, on request, more than 30 (thirty) days should be allowed. This notice shall be served on the applicant through the Competent Authority, who referred the case to the Committee.” But the said rule is not applicable in the present case, as the said rule applies to fresh applications. 12. The procedure to deal with the fraudulent claims is stipulated at Rule 9 of Rules of 1997, which reads as follows: “Rule 9 (1) Where the District Collector receives a written complaint from any person or has otherwise reason to believe that a person not belonging to SC or ST or BC has obtained a false community, Nativity and Date of Birth Certificate, he shall refer the same to the Chairman, Scrutiny Committee constituted under Rule 8 to enquire into such cases and send its findings to the District Collector. (2) The Scrutiny Committee on receipt of such cases referred to it by the District Collector, shall follow the procedure as listed in Rule (d) (1) to (7) except that it shall serve the notice in Form VI on the person involved in the case. (3) The Scrutiny Committee shall in such cases caused by the Protection of Civil Rights/Vigilance Cell i.e., through the officer representing the Protection of Civil Rights/Vigilance Cell as the member of the committee. The Protection of Civil Rights/Vigilance Cell should investigate the social status claimed by the person by sending the Inspector of Police to the local place of residence of that person and where he/she usually resides or in case of migration to the town or city from which he/she originally hailed from. The Protection of Civil Rights/Vigilance Cell should investigate the social status claimed by the person by sending the Inspector of Police to the local place of residence of that person and where he/she usually resides or in case of migration to the town or city from which he/she originally hailed from. The Inspector should personally verify and collect all the facts about the community claim of the persons or the guardian or the parent, as the case may be. (4) Where the person on whom a notice served in Form-VI fails to respond to the notice within the period specified in the notice, the Scrutiny Committee may finalise its findings based on the material made available by the District Collector i.e., enquiry report of the Revenue Department, enquiry report of the Protection of Civil Rights/Vigilance cell and the reports of the expert/officer of the Research organization of the Commissionerate of Social Welfare/Tribal Welfare. (5) The Scrutiny Committee shall compare the enquiry reports of the Revenue Department furnished by the District Collector, the reports of Protection of Civil Rights/Vigilance Cell and the reports of the Expert or Officer of the Research Organisation of the Commissionerate of Social Welfare/Tribal Welfare and then finalise its findings whether the Community, Nativity and Date of Birth Certificate given to the person or his/her children is genuine or otherwise. (6) The Scrutiny committee shall furnish its findings to the District Collector within 60 days from the date of the receipt of the reference from the District Collector. (7) The District Collector shall then decide whether the certificate is genuine or fraudulent and in case if it is found that it was obtained fraudulently, the District Collector shall pass an order cancelling 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 persons, besides taking other specified in Rule 15. He shall communicate the cancellation of certificate to the 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. He shall communicate the cancellation of certificate to the 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. (8) In respect of the Bariki SC Community, such written complaints if received by the Collector shall be referred by him to Government, for necessary enquiry and final action to cancel the certificate, since the District Collector is the competent authority to issue the community, nativity and date of birth certificate for this community. (9) The Collector of Government, either suo motu, or on a written complaint by any person or on request by a employer/educational institution/appointing authority shall enquire into the correctness of any community already issued and if it is found that the certificate is obtained fraudulently, then the District Collector or the Government, as the case may be, shall cancel the certificate as per Section 5 of the Act. (10) In respect of Tribals (the Commissioner of Tribal Welfare/Director of Tribal Welfare) either suo motu or on a written complaint by any person or on request made by an employer/educational institution/appointing authority shall enquire into the correctness of any community nativity and date of birth certificate already issued and if it is found that the said certificate is obtained fraudulently, shall refer the case to concerned Collector to the Government for its cancellation as per the procedure laid down Section 5 of the Act.” 13. Basing on the sub-rule (10) of Rule 9, learned senior counsel submits that as the petitioners are tribals, the Commissioner of Tribal Welfare ought to have enquired in to the matter and that the procedure contemplated under sub-rule (10) of Rule 9 is not followed. 14. As seen from sub-rule (10) of Rule 9, the Commissioner of Tribal Welfare/Director of Tribal Welfare, either suo motu or on a written complaint by any person made by an employer/educational institution, shall enquire into the correctness of any community certificate already issued and if it is found that the said certificate is fraudulent, he has to refer the cases to the concerned District Collector for cancellation as per Section 5 of the Act 16 of 1993. The contention of the learned senior counsel is that only sub-rule (10) applies so far as tribals are concerned is not correct and sub-rule (10) only empowers the Commissioner of Tribal Welfare to enquire a complaint given by any person or request made by an employer or an educational institution and to refer the same to the concerned Collector. Whether the candidate is ST, SC or BC, the procedure is the same and Rule 9 has to be followed in toto. 15. Learned senior counsel appearing for the petitioners also contends that even though the Tahsildars have submitted a report to the Project Officer of ITDA, they did not give prior notice to the petitioners before conducting enquiry. As seen from the counter-affidavit, basing on a complaint, a preliminary enquiry was made by the Tahsildar and report was given to the Project Officer, ITDA, which revealed that further enquiry is inevitable and hence, to conduct an enquiry, impugned notices were issued to the writ petitioners. 16. Learned senior counsel also contends that the enquiry is being done only with regard to Rajavommangi Mandal. As seen from the counter-affidavit of the Government, when the Tribal people led a procession to the office of the Project Officer raising agitation against the then Tahsildar of Rajavommangi, the Joint Collector conducted a meeting with Adivasi Sanghams of Rampachodavaram Division and assured that the certificates issued from 01.04.2018 would be verified so far as Rajavommangi Mandal is concerned. Merely because enquiry is not conducted in other mandals, petitioners cannot contend that no enquiry should be conducted in a particular Mandal. 17. Learned senior counsel relies upon the ‘important circular’ dated 20.02.1988 issued by the District Collector, Kakinada, particularly, para 18, which reads as follows: “18. Considering all the facts mentioned in the above orders, it is clarified that those malas or agency malas or valmikis whose fore-father where bona fide residents of agency tracts of East Godavari prior to 1924 and up to 06-09-1950 in the names such as malas or agency malas or valmikis shall be considered to be treated as Scheduled Tribes. However, those malas and agency malas who were settled in the agency areas after 6-9-60 and who are residing there since then are not qualified to be classified as scheduled tribe. However, those malas and agency malas who were settled in the agency areas after 6-9-60 and who are residing there since then are not qualified to be classified as scheduled tribe. For this purpose, the person who were claiming themselves as valmikis from 6-9- 50 should prove the following points before the revenue authorities. Either himself or his ancestors should have had bonafide residence and lived as residents in the agency tract prior to 6-9- 50. They may call themselves either malas or agency malas or valmikis. Those persons who are their descendents can be safely classified as scheduled tribes. The evidence for the aforesaid purpose shall be in the form of birth extracts, wherever it is available. In the absence of birth extract the death of the fore fathers of the applicant prior to 6-9-50 shall also be taken and accepted as a bonafide evidence and; their claims can be considered as Valmiks as per the Constitution order in force. In the absence of aforesaid documentary evidence, the statement from the co-tribals of the (other than agency malas or malas) persons whose age as on 6-9-50 shall be not less than 15 years of otherwise the person testifying to this effect should be aged more than 60 years as on the date of enquiry.” 18. Basing on the above para 18 of the Circular, learned senior counsel submits that the certificates were issued to the petitioners basing on the above guidelines. 19. As seen from the counter-affidavit, original files could not be traced in the office of the Tahsildar in so far as 255 caste certificates are concerned and strong objections were raised with regard to 123 caste certificates during local enquiry. 20. Learned senior counsel further submits that if the report submitted by the team of Tahsildars to the Project Officer and the report submitted by the Project Officer to the Collector is given to the petitioners, they can give an effective explanation to the notices issued. Sri K Venkatesh, learned counsel for the petitioners in WP No.1052 of 2019 submits that according to Rule 16 of the Rules of 1997, certificate issued is a permanent one and that it cannot be cancelled. The said contention cannot be accepted for the simple reason that the very same rules prescribe a procedure for dealing with fraudulent claims and for the cancellation of those certificates. The said contention cannot be accepted for the simple reason that the very same rules prescribe a procedure for dealing with fraudulent claims and for the cancellation of those certificates. He further submits that according to sub-rule (i) of Rule 5, the Competent Authority, in the cases of doubtful claims, shall refer the matter to the Chairman of the Scrutiny Committee which is formed at the District level under Rule 8 i.e., the Joint Collector of the District. Admittedly, the said Rule 5(i) deals with fresh application and hence, the same is not applicable to the facts of the present case. The circular referred to by the learned senior counsel appearing for the petitioners and the letter of the Commissioner, Tribal Welfare, addressed to the Government dated 18.03.1998 deals with certain instructions with regard to issuance of the certificates. But, however, the procedure prescribed under the Act and the Rules have to be followed in the case of a complaint against any certificate. 21. As the impugned proceeding is only a notice basing on a complaint, the petitioners cannot contend that such a complaint cannot be enquired into at all. As contended by the learned senior counsel appearing for the petitioners, they are entitled to a copy of the preliminary enquiry report conducted by the team of the Tahsildars and the report submitted by the Project Officer, ITDC to the Collector. As the preliminary enquiry has been conducted basing on the complaint, the petitioners cannot contend that without there being anything, the respondents are resorting to a second enquiry. According to Rule 9(1), when a complaint is received by the District Collector that a person has obtained false certificate, he has to refer the same to the Chairman, Scrutiny Committee i.e., Joint Collector of District concerned under Rule 8, to enquire into such cases and send the findings to the District Collector. In the present case, written complaint has been received and basing on a preliminary enquiry, he has a reason to believe that a person not belonging to the specified caste, has obtained false certificate and referred the case to the Chairman, Scrutiny Committee and accordingly, Form VI notice was issued in accordance with sub-rule (2) of Rule 9 of the Rules of 1997. 22. 22. In the facts and circumstances of the case, the appropriate authority is directed to furnish a copy of the enquiry report of the team of the Tahsildars and the report of the Project Officer, ITDA, Rampachodavaram dated 23.12.2018 submitted to the District Collector, to the individual petitioners to whom notices were issued to enable them to give an effective reply/explanation to the impugned notices dated 07.01.2019, preferably within a period of eight (8) weeks from the date of receipt of a copy of this order and the petitioners are at liberty to submit explanation to the impugned notices within a period of eight weeks thereafter and the respondents are directed to complete the enquiry by following the procedure contemplated under Act 16 of 1993 and the Rules of 1997 and communicate the same to the petitioners. It is needless to state that as notices were given to many candidates, enquiry may be conducted batch-wise, so that the correct facts would came to light. 23. All the writ petitions are accordingly, disposed of. No order as to costs. Miscellaneous petitions, if any pending, in these writ petitions, shall stand closed.