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2023 DIGILAW 240 (AP)

State of A. P. v. Kadraka Sashibushan Rao

2023-01-31

A.V.SESHA SAI, VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT : A.V. Sesha Sai, J. 1. Heard Sri V.K. Naidu, learned Government Pleader for Services-III for the appellants and Sri Thota S.V.L. Narasimhaswamy, learned counsel for the respondents-writ petitioners. 2. Since the issues and contentions in these two Writ Appeals are the same, this Court deems it appropriate to dispose of these two Writ Appeals by way of a common judgment. 3. In W.A.No.118 of 2023, challenge is to the order dated 08.07.2022 passed by the learned Single Judge in W.P.No.24270 of 2020. W.A.No.157 of 2023 calls in question the order dated 08.07.2020 in W.P.No.23855 of 2020. The order impugned in these two Writ Appeals is a common order passed by the learned Single Judge. The respondents in the present Writ Appeals, by invoking the provisions of Article 226 of the Constitution of India, instituted the above referred Writ Petitions, assailing the action on the part of the appellant-authorities in not considering their candidature for appointment as Secondary Grade Teacher (Telugu) notified vide Notification No.768/TRC-1/2018, dated 26.10.2018 on the ground of non-submission of Nativity (Agency Area) Certificates. After receipt of notices, the respondents in the Writ Petitions, who are the appellants herein, filed counter affidavits, denying the averments and allegations made in the affidavits filed in support of the Writ Petitions and in the direction of justifying the impugned action. The learned Single Judge, by way of a common order dated 08.07.2022, allowed the Writ Petitions, directing the respondents-appellants herein to consider the candidature of the writ petitioners-respondents herein for appointment as Secondary Grade Teachers (Telugu) as per the Notification referred to supra, without insisting on production of Nativity (Agency Area) Certificates. Challenging the validity and legal sustainability of the aforesaid order, the present Letters Patent Appeals have been preferred. 4. It is strenuously contended by Sri V.K. Naidu, learned Government Pleader for Services-III for the appellants that the common order passed by the learned Single Judge is highly erroneous, contrary to law and opposed to the cardinal principles of service jurisprudence. Challenging the validity and legal sustainability of the aforesaid order, the present Letters Patent Appeals have been preferred. 4. It is strenuously contended by Sri V.K. Naidu, learned Government Pleader for Services-III for the appellants that the common order passed by the learned Single Judge is highly erroneous, contrary to law and opposed to the cardinal principles of service jurisprudence. In elaboration, it is further contended by the learned Government Pleader that the learned Single Judge did not appreciate the Rules called “the Andhra Pradesh Teacher Recruitment Test (TRT) for the posts of School Assistants (SAs), Language Pandits (LPs), Physical Education Teachers (PETs), Music Teachers, Craft Teachers and Art & Drawing Teachers and Teacher Eligibility Test cum Teacher Recruitment Test (TET-cum-TRT) for the posts of Secondary Grade Teachers (SGTs)-Scheme of Selection Rules, 2018” notified vide G.O.Ms.No.67, School Education (Exams) Department, dated 26.10.2018 in general and Rule 19 (v) & (vi) of the Rules in particular. It is further submitted by the learned Government Pleader that the action impugned in the Writ Petitions is in consonance with the constitutional mandate enshrined under Article 342 of the Constitution of India. 5. On the contrary, the learned counsel for the writ petitioners-respondents herein contends that the order passed by the learned Single Judge, which is impugned in the present Writ Appeals, does not warrant any interference of this Court under Clause 15 of the Letters Patent as the same does not suffer from any legal infirmity or jurisdictional error. In elaboration, it is further contended by the learned counsel that having regard to the reasons assigned by the learned Single Judge in the impugned order and the order of the Division Bench of the Composite High Court of Andhra Pradesh referred to in the impugned order, the present Writ Appeals are liable to be dismissed. 6. It is also brought to the notice of this Court that neither the provision of Act 16 of 1993 nor the Rules framed there under enables the appellants herein to insist upon the Nativity (Agency Area) Certificates. 7. There is absolutely no controversy with regard to the reality that all the writ petitioners herein belong to Scheduled Tribe Community. 6. It is also brought to the notice of this Court that neither the provision of Act 16 of 1993 nor the Rules framed there under enables the appellants herein to insist upon the Nativity (Agency Area) Certificates. 7. There is absolutely no controversy with regard to the reality that all the writ petitioners herein belong to Scheduled Tribe Community. It is also not in dispute that in support of their Community, Nativity and Date of Birth, all the writ petitioners-respondents herein have made available their respective Certificates issued by the competent authorities under the provisions of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (in short “the Act 16 of 1993”). It is also not in dispute that all such Certificates issued by the competent authorities in favour of the writ petitioners-respondents herein are still intact. The Constitution (Schedule Tribes) Order, 1950, issued by His Excellency the Hon’ble the President of India, in exercise of powers conferred under Clause (1) of Article 342 of the Constitution of India, is placed on record along with the Writ Appeals as a material paper. The State of Andhra Pradesh, which formed part of Composite State of Madras was also indicated at Part No.V of the said Presidential Order. A reading of the said Presidential Order, in clear and vivid terms, indicates that throughout the State, the subject Scheduled Tribes were indicated as Scheduled Tribes. 8. Learned Government Pleader for Services-III made an attempt to justify the impugned action of the respondents-appellants herein by referring to the Rules notified vide G.O.Ms.No.67, School Education (Exams) Department, dated 26.10.2018. The relevant Rule, which is relevant and germane for the purpose of adjudication of the issues in the present Writ Appeals is Rule 19 of the said Rules, which deals with the preparation of selection lists. Rule 19(v) of the said Rules reads as follows : “(v) Local Scheduled Tribe candidates shall only be considered for selection and appointment against the vacancies in Scheduled Areas. They shall also be considered for selection to the posts notified in Plain area, if they come up for selection.” 9. Obviously in the guise of aforesaid Rule, the respondents-appellants herein are insisting on production of Nativity (Agency Area) Certificates. They shall also be considered for selection to the posts notified in Plain area, if they come up for selection.” 9. Obviously in the guise of aforesaid Rule, the respondents-appellants herein are insisting on production of Nativity (Agency Area) Certificates. According to the learned Government Pleader, the authorities are insisting on such Certificates only for the purpose of safeguarding the interest of the local Scheduled Tribes. 10. On the other hand, the learned counsel for the writ petitioners-respondents herein resists that said contention by contending that the authorities have no such power to create horizontal reservation in Scheduled Tribes as the same is solely within the domain of the Parliament and in the event of there being any such Rule framed by the State Government, the same is required to be read down having regard to the constitutional mandate. In this context, it would be appropriate to refer to Article 342 of the Constitution of India, which reads as follows : “342. Scheduled Tribes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 11. Learned Government Pleader also makes an attempt to justify the impugned action by referring to power of the State Government under Article 309 of the Constitution of India. The fact remains that such power is available to the State Government only subject to the other provisions of the Constitution of India. In this context, it may also be appropriate to refer to the judgment of the Division Bench of the Composite High Court of Andhra Pradesh in the case of S. Vijaykumar Vs. District Educational Officer and others, 2013 LawSuit(AP) 752. In this context, it may also be appropriate to refer to the judgment of the Division Bench of the Composite High Court of Andhra Pradesh in the case of S. Vijaykumar Vs. District Educational Officer and others, 2013 LawSuit(AP) 752. In the said decision, when a similar issue cropped up, the Division Bench of the Composite High Court of Andhra Pradesh at paragraphs 7 and 8 held as under : [7] To determine 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. [8] The petitioner was born and brought up in Utnoor and his education was at that place. After verifying the relevant records, the Mandal Revenue Officer issued a caste, nativity and date of birth certificate, dated 28.05.2001 prescribed under the Act and the Rules. None of the respondents has doubted the genuinity of that certificate. Strictly speaking, in view of the certificate referred to above, there was no necessity for the petitioner to submit any other certificate in proof of his nativity. Since the notification mandates that a separate 'certificate of proof of local scheduled tribe community' has to be submitted, the petitioner obtained such a certificate on 03.02.2006. That certificate was doubted by the DSC and it was referred to the 2nd respondent.” 12. It is not the case of the appellants that the writ petitioners-respondents herein failed to produce the comprehensive Certificates issued by the designated authorities under the Act 16 of 1993. A perusal of the order passed by the learned Single Judge shows that the learned Single Judge considered the effect of G.O.Ms.No.67, School Education (Exams) Department, dated 26.10.2018 and also G.O.Ms.No.3, Social Welfare (TW.EDN.II) Department, dated 10.01.2000. It is significant to note in this context that when the affected candidates made applications under the provisions of the Right to Information Act, 2005, as to the Rules which specify such mandate for issuance of Nativity (Agency Area) Certificate, the Tahsildar vide Lr.No.357/2021/A, dated 18.08.2021 and the Tribal Welfare Department vide Rc.No.44/TRI/RTI Act-2005/2021, dated 10.02.2021 specifically informed that there are no specific Rules for issuance of Nativity (Agency Area) Certificate. When the Presidential Order recognizes the State as a single unit for consideration of the status of Scheduled Tribes, the insistence on the part of the authorities for production of Nativity (Agency Area) Certificates in contravention of the Presidential Order is required to be treated as unauthorized and impermissible. In view of these reasons, this Court is of the opinion that there are absolutely no merits in the present Writ Appeals. 13. For the aforesaid reasons, both the Writ Appeals are dismissed. However, having regard to the submission made by the learned Government Pleader for Services-III, the time granted by the learned Single Judge for compliance with the order is extended by eight (08) weeks from today. 14. Miscellaneous petitions, if any, pending in this case, shall stand closed.