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2022 DIGILAW 1478 (AP)

P. Suri Babu v. Govt. of A. P.

2022-12-15

D.RAMESH

body2022
JUDGMENT 1. This writ petition is filed questioning the action of the 1st respondent in issuing the G.O.Ms.No.12, Social Welfare (CV2) Department, dtd. 29/1/2014 and to set aside the orders passed by the 2nd respondent in B2/2380/97, dtd. 18/3/1998, by upholding S.T. "Konda Kapu" Community Certificate issued by the Tahsildar, Rajavommangi Mandal, in favour of the unofficial respondents 4 to 25. 2. Heard learned counsel for the petitioner and learned Government Pleader for Tribal Welfare for the respondents 1 to 3 and learned counsel appearing for the respondents 4 to 25. 3. Initially, present writ petition was filed by one P.Suri Babu, Son of Satyanarayana stating that he belongs to ST community and activist of tribal rights and actively involved in agitating against the persons, who secured appointment with aid of Bogus Community Certificates under S.T. Quota. The respondents 4 to 25 belongs to one family and they obtained Social Status Certificates showing that they belongs to Konda Kapu (S.T.) with false documents. The petitioner is not a party to the proceedings before the 1st respondent and he is unaware of passing of the G.O.Ms.No.12, Social Welfare (CV2) Department, dtd. 29/1/2014. 4. The Sub-Collector, Rampachodavaram issued Show Cause Notice dtd. 9/9/1989 to respondents No.4 to 25 seeking explanation, stating that the respondents 4 to 25 does not belongs to Konda Kapu Community and the respondents 4 to 25 submitted their explanation to the Sub-Collector, Rampachodavaram and the Sub-Collector has cancelled the Caste Certificates of the respondents 4 to 25. Challenging the same, the respondents 4 to 25 filed a writ petition and this Court set aside the proceedings of the Sub-Collector cancelling Community Certificates of the respondents and remanded back the matter to the Sub-Collector for fresh consideration as per the provisions of the Act. 5. After remanding the matter, the Sub Collector has conducted enquiry and cancelled the Caste Certificate issued in favour of the unofficial respondents on 18/3/1988. Assailing the said orders, the unofficial respondents have filed an appeal before the 1st respondent. The 1st respondent considered and allowed the appeal filed by the unofficial respondents vide G.O.Ms.No.12 dtd. 29/1/2014 and set aside the cancellation orders issued by the 2nd respondent dtd. 18/3/1998. Assailing the said orders, present writ petition has been filed. 6. Assailing the said orders, the unofficial respondents have filed an appeal before the 1st respondent. The 1st respondent considered and allowed the appeal filed by the unofficial respondents vide G.O.Ms.No.12 dtd. 29/1/2014 and set aside the cancellation orders issued by the 2nd respondent dtd. 18/3/1998. Assailing the said orders, present writ petition has been filed. 6. Main contention of the petitioner herein is that without seeking the difference between Kapu and Pedda Kapu, said appeal was allowed only based on A.P. Gazette issued in 1953, 1963 that Konda Kapu, Mannem Kapu and Kapus of Visakhapatnam and East Godavari Districts were treated in the category of "Hill Tribes". The observations made in the said G.O. by the 1st respondent is contrary to the ratio decided by the Apex Court in the State of Maharashtra v. Milind, (2001) 1 SCC 4 . wherein it is observed that - "12. Plain language and clear terms of these articles show (1) the President under clause (1) of the said articles may with respect to any State or Union Territory and where it is a State, after consultation with the Governor, by public notification specify the castes, races or tribes or parts of or groups within the castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes/Scheduled Tribes in relation to that State or Union Territory as the case may be; (2) under clause (2) of the said articles, a notification issued under clause (1) cannot be varied by any subsequent notification except by law made by Parliament. In other words, Parliament alone is competent by law to include in or exclude a caste/tribe from the list of Scheduled Castes and Scheduled Tribes specified in notifications issued under clause (1) of the said articles. In including castes and tribes in Presidential Orders, the President is authorised to limit the notification to parts or groups within the caste or tribe depending on the educational and social backwardness. It is permissible that only parts or groups within them be specified and further to specify castes or tribes thereof in relation to parts of the State and not to the entire State on being satisfied that it was necessary to do so having regard to social and educational backwardness. It is permissible that only parts or groups within them be specified and further to specify castes or tribes thereof in relation to parts of the State and not to the entire State on being satisfied that it was necessary to do so having regard to social and educational backwardness. The States had opportunity to present their views through Governors when consulted by the President in relation to castes or tribes, parts or groups within them either in relation to the entire State or parts of State. It appears that the object of clause (1) of Articles 341 and 342 was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or Scheduled Tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342, is to be determined looking to them as they are. Clause (2) of the said articles does not permit any one to seek modification of the said orders by leading evidence that the caste/Tribe (A) alone is mentioned in the Order but caste/Tribe (B) is also a part of caste/Tribe (A) and as such caste/Tribe (B) should be deemed to be a Scheduled Caste/Scheduled Tribe as the case may be. It is only Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the entries in the schedules pertaining to each State whenever one caste/tribe has another name it is so mentioned in the brackets after it in the schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or Tribunals are vested with any power to modify or vary the said Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or Tribunals are vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful. ........ 36. In the light of what is stated above, the following positions emerge: 1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority. 4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. 5. 4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. 5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar [ (1970) 2 SCC 825 : (1971) 1 SCR 804 ] and Dina v. Narain Singh [38 ELR 212 : (1968) 8/12/329] did not lay down law correctly in stating that the inquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in Position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter." 7. Hence the orders issued in G.O.Ms. No.12 based on the A.P. Gazette was bad in law, until and unless a notification was issued under clause (2) of Article 341 and 342 of the Constitution of India. In the instant case, without there being inclusion of the said caste in the list of Schedule Tribes, it cannot be included based on the Gazette issued by the A.P. State. 8. While pending the writ petition, the sole petitioner has died; now the present petitioner filed the I.A. No.02 of 2021 for impleading him as petitioner, as a legal heir and the same was ordered on 17/12/2021. Accordingly, the petitioner was impleaded as 2nd petitioner in the writ petition. 9. After receipt of notice, the 1st respondent filed counter denying the averments made in the writ petition at paragraphs 8, 9, 10 and 11. 10. Learned Government Pleader appearing for the respondents submitted that considering the record, the authorities have exercised their jurisdiction under Sec. 7 (2) of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community certificates Act, 1993, and passed the present impugned orders. 11. On the other hand, learned senior counsel appearing on behalf of the unofficial respondents submitted that the writ petition itself is not maintainable. The petitioner filed the writ petition without stating how the rights of the petitioner are affected by virtue of the issuance of Certificates in favour of the respondents 4 to 25. 11. On the other hand, learned senior counsel appearing on behalf of the unofficial respondents submitted that the writ petition itself is not maintainable. The petitioner filed the writ petition without stating how the rights of the petitioner are affected by virtue of the issuance of Certificates in favour of the respondents 4 to 25. Even according to the averments made in the writ petition, there is no specific stand taken by him that any complaint made by the petitioner, upon which the authorities have initiated action against the respondents 4 to 12. When there is no specific averment with regard to making of complaint by the petitioner, the question of filing the writ petition, challenging the appellate order of the 1st respondent is not justifiable. Hence, the very locus standi of the petitioner is in question. 12. He further relied on the provisions of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community certificates Act, 1993 [for short the Act], thereby contends that the role of the third party ceases to exist, after making a written complaint to the District Collector. Sec. 5 of the Act deals with Cancellation of false Community Certificate, which provides that the District Collector, either suomotu or on a written complaint by any person, can enquire into the correctness of the said 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. 13. As per Sec. 6 of Act, the burden of proof lies on the claimant and Sec. 7 provides appeal or review by the aggrieved person within thirty days from the date of receipt of such order, appeal to the District Collector. Therefore, on perusal of Ss. 5, 6 and 7 of the Act clearly demonstrates that only under Sec. 5, the third party can make a complaint, after that his role will cease and it is only the authorities to enquiry into the matter; based on the said enquiry, they can take action and the burden of proof should be on the claimants to prove that he belongs to such Caste, Tribe or Class. Appeal or review also has to be filed only by the aggrieved persons. Appeal or review also has to be filed only by the aggrieved persons. Thus, as per the statute the appeal can be filed by the aggrieved person, whose claim was rejected. 14. But in the instant case, the petitioner has not specified whether he has made any complaint before the competent authority, therefore, he is not entitled to question the benefits granted to the unofficial respondents in the present writ petition, without asserting that how his rights are affected. 15. When the writ petitioner himself has no locus standi to file the writ petition, I.A. No.2 of 2021 filed by the present petitioner, is not maintainable. The petitioner has stated nothing in the I.A., except that he is having blood relation with the original petitioner. He is not a legal heir of the petitioner. When there are no financial implications in the writ petition, filing the application as legal heir is not maintainable. Hence, the I.A. ought not to have been entertained and even if it is ordered, it can be looked once again at the time of final disposal. 16. Further learned senior counsel relied on the decision of the Honourable Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702 . wherein the apex court held that - " Where a right of appeal to courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words "a person aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again, a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words "persons aggrieved" in Ss. 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words "person aggrieved" include "a person who has a genuine grievance because an order has been made which prejudicially affects his interests". It has, therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette. 17. The observations made by the Apex Court in the above said judgment, clearly demonstrates that who would be the aggrieved person. As per the ratio decided, the present petitioner will not come under the said observation. Hence, the writ petition has to be dismissed solely on that ground. 18. Learned senior counsel further submitted that on the identical issue the Hon'ble Apex Court in Adi Pherozshah Gandhi Vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, AIR 1971 SC 385 . held that only aggrieved person is entitled to prosecute the litigation. In the instant case, the petitioner has no locus standi, as he is not the aggrieved party. Hence, the writ petition is liable to be dismissed inlumini. 19. Further he has also placed reliance on the judgment of the Hon'ble Apex Court in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54 . where it is held that - "45. We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so." 20. Learned counsel for the petitioner has submitted that as per the observations made in the above said writ petition, it is clear that the question of locus standi would not arise in entertaining the petitions like this, any person can question the validity of the certificate. The court can take cognizance of the matter as a grave importance either suo motu or by the complaint filed by any person. Hence, the writ petition is maintainable even filed by any third party, who is not an effected person. 21. Considering the submissions made by both the counsel and on perusal of the material on record, this court is not satisfied with the averments made in the writ petition since the petitioner has not specifically stated, how he is affected by virtue of the impugned orders; apart from that, even the petitioner has not placed any record to show that he is the person for initiation of the proceedings against the respondents 4 to 25. So also the petitioner has not placed any record to show that respondents 4 to 25 do not belongs to Schedule Tribal Community (Konda Kapu) and he has not placed the original orders passed by the District Collector under Sec. 5 of the Act. 22. So also the petitioner has not placed any record to show that respondents 4 to 25 do not belongs to Schedule Tribal Community (Konda Kapu) and he has not placed the original orders passed by the District Collector under Sec. 5 of the Act. 22. Learned counsel for the petitioner contended that the Government solely on the basis of the gazette issued 1953, 1963, the present appeal has been allowed, only they have referred the G.O. issued in 1953 and 1963 but the fact remains that in Annexure I of the Act, "Konda Kapu' is included as Schedule Tribal Community. Therefore, when the community is included as Schedule Tribal as per the Article 341 and 342 the ratio decided by the Hon'ble Apex Court in State of Maharashtra Vs. Milind and Others case does not apply to the present case. Further the contentions raised by the senior counsel, more specifically with regard to the effected person, as stated by the Hon'ble Apex Court in Bar Counsel of Maharashtra's case, the petitioner would not come under the category of person aggrieved by virtue of impugned G.O.M.S.No.12. Though the petitioner has relied on the judgment in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar's case, where the issue involved with regard to the two officers in the same organization, the other person does not belong to the Schedule Tribal community, the Court held that when it comes to the notice of the Court about the grant of vague certificates, as a matter of importance it can be entertained. But in the instant case, no record has been placed to support the contention of the petitioner that the respondents 4 to 25 do not belongs to the Schedule Tribal Community, i.e. Konda Kapu Community. 23. In the said circumstances, this court is not inclined to interfere with the matter. Accordingly, the writ petition is dismissed. No costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.