Andhra HC (Pre-Telangana)
B. Venkata Rao And Anr. vs Principal, Andhra Medical College, ... on 1 December, 1988
Equivalent citations: AIR1989AP159, AIR 1989 ANDHRA PRADESH 159, (1989) 2 ANDH LT 491
Author: K. Ramaswamy
Bench: K. Ramaswamy
ORDER
1. The first petitioner is the son and the second petitioner Chenchu Naidu is the father. The first petitioner sought for and was provisionally admitted in the First Year M.B.B.S. Course on Oct. 9, 1980 as a Scheduled Tribe (Konda Kapu) on the basis of the caste certificate issued by the Tahsildar, Anakapalle on Aug. 7, 1980 and the Transfer Certificate dt. Oct. 3, 1980 issued by the Anakapalle College. The matter was referred to the Director of Tribal Welfare-2nd respondent for enquiry and report about the genuineness of the social status of the first petitioner.
2. The petitioners, at the threat of disciplinary action, appeared before the Director of Tribal Welfare on June 24, 1983 and furnished the unattested copy of the report about the caste verification of the second petitioner issued by the District Collector, Visakhapatnam, dt. July 2, 1964 claiming that he is a Konda Kapu (also known as Kondavalu, Kodu Valu and Koyas). Their Tribe has no sub-tribes; their family belongs to 'Naga' clan; Vasista is the name of the other tribe; Bellana is their surname; the surnames of their community people are Tadi, Yenni, Boyana, Jain, Golaga; their native place is Gudem, Jeypore Taluk in Koraput district, Orissa State; the approved form of marriage in their community is by negotiations; their community people are not traditionally permitted to dine with Mala, Madiga, Bill, Boya castes; Beat eating is forbidden; they worship Surya; Venkateswara, Durga, Modu Kondamma and Naga.
3. G.O.Ms. No. 245, Social Welfare, dt. June 30, 1977 provides the information as regards Konda Kapu tribes. Investigation was conducted in the light of the information furnished and the guidelines provided in G.O.Ms. 245. Konda Kapu is not synonymous to Konda Valu, Kodu Valu and Koya in that G.O. Naga and Vasista clans do not find place among Konda Kapu tribes; persons bearing Bellana surname were not found in Kondakapu tribe; Among the Konda Kapus, the consumption of certain kinds of meat was not forbidden. Konda Kapus are not prohibited to dine with Mala, Madiga, Bill and Boya communities. The deities claimed to be worshipped by the petitioners and their people are not found in pantheon of the deities of Kondakapu tribe. It is further found during investigation that one Bellana Chinnama Naidu is the paternal grandfather of thesecond petitioner. Bellana Chinnama Naidu and his wife hail from Gudem village of Jayporc Taluk, Koraput district in Orissa State and the geneology of various persons has been mentioned in the report the details of which are not material, but suffice it to state that all of them have settled down in Gajapathinagaram, about 80 years back. The father of the second petitioner had three sons
-- Chenchu Naidu (2nd petitioner), Chinnama Naidu and Gunnama Naidu and two daughters
-- Gangamma and Appayamma. The second petitioner married Appala Naidu Kondamma daughter of Thadi Gangaiah Naidu of Modaraveedhi of Parvathipuram. All the people reside in Diguva Veedhi at Gajapathinagaram. The second petitioner was born on July 1, 1937 and studied at Gajapathinagaram. The second petitioner has the first petitioner (son) and two daughters by name Sri Devi and Padmalatha. Bellana people are land-owning agriculturists in Gajapathinagaram and they are prominent among the people there. The village munsif hails from their family; his service role as V. M. shows that he is Kapu by caste. In the voters' list, it is stated as non-scheduled tribe voters'. All the persons bearing Bellana i surname have been listed as Non-scheduled tribes in Gajapathinagaram. The brothers and sisters of the second petitioner and their family were enumerated in the voters list at S. Nos. 249 to252 pertaining to the year 1980 and all of them have been shown as non- scheduled tribe voters. The relations of the petitioners bear the surnames -- Alti, Soora, Gedda and Tadi, and all of them are enumerated as Kapus by caste. The first petitioner and his sister(Sridevi) studied from Class I to Class V in the Municipal Sriram Pathasala, Visakhapatnam during the years 1968 to 1972. The school records show that the first petitioner and Bellana Sridevi, as against their caste column, it was described as Kapus. Again, the first petitioner studied Vth Class in C.M.P. Hope Hall Upper Primary School, Visakhapatnam for some time, Therein also he was described as Kapu by caste. He joined in the Municipal High School, Srikakulam in Vth Class in the year 1973-74. Therein also his caste was mentioned as Kapu. He joined VII Class in S.J.R.R.M.M. High School, Guntur in 1974. The second petitioner filled the application form for admission therein on Oct. 28, 1974 duly enclosing the transfer certificate from the Municipal High School, Srikakulam. Therein, he stated that he belongs to Kapu by caste and that he does not belong to Scheduled Tribe. The Transfer Certificate from the Municipal High School, Srikakulam also shows that the first petitioner is Kapu by caste. But surprisingly, it is recorded in the admission register of the above High School at Guntur, as Kondakapu and the transfer certificate issued by S.J.R.R.M.M. High School, Guntur now reflected, as Konda Kapu and it was produced for admission into first year Intermediate in Hindu College, Guntur and recorded therein also as Kondakapu. The Transfer Certificate issued by the Hindu College, Guntur describing the first petitioner as Konda Kapu was produced in the A.M.A.L. College, Anakapalli where the first petitioner was admitted to second year Intermediate and there it was recorded again as Kondakapu. Sridevi the elder sister of the first petitioner -- the eldest daughter of the second petitioner studied in Akasapuram Special Elementary School, Vizianagaram. In that school, it was clearly mentioned her caste as Kapu. Later she studied in Sri Rama Basic Pathasala, Visakhapatnam. In the said school records also her caste was shown as Kapu.
Padmalatha, the younger sister of the first petitioner -- the youngest daughter of the second petitioner, studied in S.J.R.R.M.M. High School, Guntur and Municipal Girls High School, Anakapalli. The school registers of those schools clearly show that her caste has been described as Kapu.
4. G(sic)O(sic)Ms. No. 147, Social Welfare, dt.
Apr. 27, 1977 provides that in respect of the Scheduled Tribe candidates listed therein including Konda Kapus, the only competent officers to issue the caste certificate are the Revenue Officer not below the rank of Mandal Revenue Officer or the Revenue Divisional Officer, Assistant Collector or Sub-Collector of the Taluk or District in whose district the Scheduled Tribe candidate claims nativity. It is found now from the records that the nativity of the "petitioners is Gajapathinagaram.
Therefore, the competent officer to issue the certificate is Mandal Revenue Officer or the Revenue Divisional Officer, Gajapathinagaram. Instead, the caste certificate was obtained from the Tahsildar, Aoakapalli, who has no jurisdiction. In G.O. Ms. No. 245, it is clearly mentioned that the officer should make personal enquiry and then issue the report.
Thereby it is seen that the caste certificate issued by the Tahsildarf Anakpalli who does not have jurisdiction obviously without enquiry issued the certificate and absolutely it is an accommodating one. The Director of Tribal Welfare, after thus conducting intensive investigation, submitted his report dt. Jan. 21, 1985 finding that the first petitioner is Kapu and not Konda Kapu. It is seen that the principal first respondent has been reminding the Director from time to time including the latest, on June 15, 1984, calling for particulars of the social status of the first petitioner.
5. On receipt of the report, the Principal first respondent, by his proceedings dt. Mar.
8, 1985, issued a show cause notice to the first petitioner wherein he has mentioned all the material facts collected by the Director of Tribal Welfare in his report referred to hereinbefore, enclosing a copy of the report thereto, and called upon the first petitioner to submit his explanation within 15 days from the date of receipt thereof; lest it would be construed that the first petitioner had no reply to offer and action would be taken thereon. The petitioner on receipt thereof on Mar. 18,1985, wrote a letter to the Principal on Mar. 26, 1985 requesting to supply the G.Os., the records in total 24 referred to in the report of the Director of Tribal Welfare and on supply thereof, needed thirty days' time to submit his representation. The Principal on receipt thereof, considered the request and passed the impugned order dt.
Aprl. 6, 1985 holding that he (the principal) is not concerned to obtain the copies referred to in the letter and supply thereof; it is for the petitioner to secure the documents in question if he needs; despite giving sufficient time, the petitioner did not submit any explanation;
thereby he does not have any material to offer to substantiate his case. Accordingly he held that the petitioner is not a Scheduled Tribe (Konda Kapu) and he claimed a false social status. Therefore, the provisional admission was cancelled and his name was removed from the rolls of the college.
Assailing the legality thereof, the writ petition has been filed.
6. At the outset, Sri Jayant, the earned counsel for the petitioner has contended that the competent authority to issue the social status certificate as per the rules or the Government of India Orders, are the revenue officials who have certified that the petitioners are Scheduled Tribes (Konda Kapu); the Director of Tribal Welfare has no jurisdiction to enquire into and submit the report; thereby basis on which action is taken cancelling the admission given to the petitioner is knocked of its bottom. Accordingly, the material cannot be relied upon. In G.O. Ms. No. 447, Medical and Health, dt. July 10, 1979 as amended in G.O. Ms. No. 793 dt. July 18, 1980 provides the procedure to make application for admission into First Year M(sic)B(sic)B.S(sic) Course in the Medical Colleges in Andhra Prad esh. It provides reservation to the members of the Scheduled Castes, Scheduled Tribes and Backward Classes for admission into the medical colleges at 14%, 4% and 25% respectively except among those candidates who secured on merit. Note (1) provides that those candidates shall, in support of their claim, furnish a certificate in the prescribed form appended to the application; and Note (2) provides thus :
"The genuineness of the claim of social status shall be referred to the respective Directorate i.e., Director, Social, Welfare/Tribal Welfare/Backward Class Welfare, whose decision on this subject shall be final and binding on the candidates. The admission to the seats reserved to S.Cs. S.Ts., and B.Cs., shall be deemed "provisional" till the receipt of the report from the respective Directors."
Thus it is clear that the certificate obtained from the revene officials as per the appendix and the procedure is not conclusive. Its genuineness of the claim of social status shall be referred to the Director concerned. Obviously on investigation, the Director has to give the decision and his decision as regards the social status shall be final and binding on the candidate. Till the date of its receipt, the admission given to a candidate shall be deemed 'provisional'. Thereby it is clear that though the revenue officials issued the social state certificate which was produced along with the application for admission into First Year M.B.B.S, Course, the certificate is not final and conclusive; its genuineness is subject to verification and the decision of the Director concerned shall be final and binding on the candidate. The petitioner having applied for and having been admitted provisionally, is bound by the regulations and it is not open to him to challenge the jurisdiction thereafter. In N.B. Rao v. Principal, Osmania Medical College, Hyderabad, , this Court has considered this aspect of the matter and held in paragraph 11, that it is an admitted fact that the rules of admission show that he opinion of the Director concerned is conclusive as against the petitioner. After issuing the G.O., now statutory rules have been made incorporating the above procedure as a condition in this regard. Therefore, I have no hesitation to hold that the Director of Tribal Welfare is the competent authority to enquire into the genuineness of the social status claimed by the petitioner and his finding that the first petitioner is a Kapu and he is not a Konda Kapu, is final and conclusive and it is binding on the first petitioner.
7. It is next contended that the enquiry was conducted by the Director of Tribal Welfare behind the back of the petitioner; thereat, no opportunity was given to the petitioner and the material collected is ex parte, therefore, the report is violative of the principles of natural justice and the material collected cannot be relied upon. I find no force in the contention. It is seen that the Admission Rules provide for an enquiry and report with regard to the genuineness of the social status claimed; obviously an enquiry has got to be made by the Director. Undoubtedly, report which is adverse to the party should be supplied to him. It is now well settled that it is always open 'to' the competent authority to collect the evidence, but before placing reliance thereon, the evidence so collected should be supplied to the party affected. It is an admitted fact that the petitioner was supplied with the report of the Director of Tribal Welfare along with the show cause notice. In fact, the show cause notice is only repetition of the material evidence collected during the enquiry by the Director of Tribal Welfare and the petitioner has been put on notice of this material which the Principal seeks to place reliance in support of his proposed action. In T.V.R.V.R. Chettiar v. State of Tamil Nadu, , a show cause notice was issued by the Government to dissolve the Gram Panchayat on the basis of a report submitted by the Collector. The show cause notice contains the details in the report which form the basis for dissolution. It is contended that a copy of the report of the Collector was not given, therefore, it is violative of the principles of natural justice. While rejecting the contention, A. N. Ray, C.K speaking for the Court held that when the contents of the report were given in the form of grounds in the show cause notice and the Counsel was called upon to answer the same, the non-supply of the report is not violative of the principles of natural justice. The same ratio applies to the facts in this case also. As seen, the show cause notice is nothing short of the repetition of the material allegations against the petitioner in the report submitted by the Director of Tribal Welfare and the petitioner has been given an opportunity but for obvious reasons, he chose to call upon the principal to supply the copies of documents referred to in the report and ultimately he did not choose to submit his explanation. Even across the bar, the correctness of any of the statements in the report of the Director of T.W. is disputed before me. Therefore, I have no hesitation to hold that the procedure adopted by either the Director of T.W. or the Principal is not violative of the principles of natural justice.
8. It is next contended that the second petitioner was declared as a Scheduled Tribe; the report given by the R.D.O. dt. May 20, 1964 following the heels of the report of the Tahsildar, Vizianagaram dt. May 7, 1964 declares the second petitioner to be a Scheduled Tribe (Konda Kapu), the Postal Department on the basis thereof, as per Government of India O. M. dt. Oct. 30,1975 declared the second petitioner to be a Scheduled Tribo. The first page of the S.S.LC. Register and the Service Register of the second petitioner disclose that he is a Scheduled Tribe. Thereby the second petitioner is a Kondakapu and his son -- the first petitioner cannot be considered to be a Kapu. In support thereof, he places reliance on the decision in Writ Petn. No. 3240 of 1980 dt. June 23, 1981. No doubt, it is seen from the records that the second petitioner was considered to be a Konda Kapu and he joined service in the Postal Department as a Scheduled Tribe on the basis of the report given by the Tahsildar and the R.D.O., Vijayanagaram. But from the overwhelming evidence on record, it is clear that the second petitioner and all his parents, brothers, sisters and cousins are only Kapus and that they are not Konda Kapus (Scheduled Tribe). Then how can he be considered to be a Tribal--The acceptance of the status of the second petitioner was based upon the reports dt. May 6, 1964 and May 20, 1964 respectively of the Tahsidar and R.D.O. It is thereby obvious that those officials had not made any proper investigation as required under the Rules.
Therefore, those certificates were only accommodating ones and they have been reflected in the service register, etc. In the decision relied on by the learned counsel, my learned brother Jeevan Reddy, J. has held that those certificates were filed for the first time in the High Court and therefore, without going into the correctness thereof he remitted the matter to the Director and directed the petitioner therein to prove the genuineness thereof. In that context it was held that they are the relevant material. It is seen from the report of the Director of Tribal Welfare that the second petitioner was called upon to produce all his records in support of their claim of social status as Scheduled Tribe (Konda Kapu) and nothing prevented the second petitioner to produce those documents before the Director. He chose not to produce them. On the other hand, he has given certain data referred to by the Director copiously in his report. Thereby the 2nd petitioner has deliberately withheld those documents from being produced before the Director so as to disable the Director to go into their genuineness. Under these circumstances, I find no force in the contention that the documents now relied on would have any bearing in view of the report submitted by the Director of Tribal Welfare.
9. It is next contended that the first petitioner by the dale of the impugned order, was studying in IVth year and pending the writ petition, he completed the medical course and is now doing housemanship and therefore the respondents are estopped from cancelling the admission. In support thereof, Mr. Jayant relied on the decision reported in Nageswararao v. A. P. Agrl. University, (1982) 1 Andh WR 85 and also the decision in B. N. Rao's case . The doctrine of equitable estoppel applies to a ease where a person is given an unequivocal assurance ami on the faith thereo, he acted detrimental to his interest and he suffered an irretrievable injury in that pursuit. In such an event, having made such a promise the maker thereof is precluded to resile therefrom and pass a order detrimental to the interest of the person who believed me promise and placing reliance thereon acted on that basis and he cannot adequately be compensated. It is seen that the admission to the First year M.B.B.S. Course was secured by the first petitioner on production of the social status certificate as a Scheduled Tribe (Konda Kapu). His admission is provisional subject to verification and report by the Director of Tribal Welfare. Thereby there is no unequivocal assurance that the admission given to the first petitioner is final and conclusive. On the other, hand, he was put on notice that the report to be submitted by the Director of Tribal Welfare is conclusive and binding on the petitioner. A person who comes to equity must come with clean hands. The first petitioner knew on the dale when he submitted his application that his social status is Kapu but he produced a false certificate as now found by the Director that he is a Konda Kapu. In Field's Law of Evidence, Tenth Edition (Volume V), Section 115 - Estoppel and Fraud, at page 4944 stated that -- BBHe cannot be deemed to rely on the state where he knew it to be false. He must have reasonably believed the statement to be true....."
At page 49-45, it is further stated :
"The doctrine of estoppel is not attracted where the party invoking it has not changed its position to its disadvantage. A change of one's position for the worse in consequence of reliance on another's act, is an important clement in estoppel if there is no change of position to one's hurt or harm, or no estoppel arises. Where the parties are equally cognizant of the fact, the declaration or representation of one cannot conduce to any change for the worse in consequence of such a representation and a party invoking the doctrioe cannot be said to have been misled as a result of wrongful conduct of or inducement on the part of the other.
Thus the indispensable elements of estoppel are ignorance of the parties who invoke the estoppel, a representation by the party sought to be estopped which misleads and an innocent and deleterious change of position in consequence of reliance upon the representation made......
The common feature of both estoppel and fraud is that law will not come to the rescue of a person who has not suffered deception, as, where he has not been led to believe in the truth of the representation."
In People's Insurance Co. v. Sardul Singh, , Tek Chand, J. considered the case on Bfraud and estoppel held thus :
"The common feature of both estoppel and fraud is that law will not come to the rescue of a person who has not suffered deception, as, where he has not been led to believe in the truth of the representation. Where a person knows that the representation is false, he cannot be truthfully said to have been deceived thereby. Courts will not grant any redress where the person to whom representation has been made, is cognizance of its falsity:"
In Krishnan v. Kurukshetra University, it was held that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It is neither a case of suggestio fabi or suppresio veri. In that case, the student was admitted to the evening law college. It is a condition precedent that the student should obtain a no objection certificate from, the employer. It was discovered later that such a certificate was not produced. On account thereof, in the final year, the admission was sought to be cancelled. In that context it was held that since the University are not diligent at the time of admission, it was not a case of suppressio veri. But the ratio establishes that if there is no suppressio veri, it is suggestio falsi. In this case, when the petitioners know that they are Kapu by caste and not Konda Kapu but made a statement and obtained a certificate that they are Scheduled Tribe (Konda Kapu) they suppressed the factum of their social status and produced false certificate. Thereby they are not entitled to the doctrine of equitable estoppel having played fraud on the authorities and got the provisional admission. In B. N, Rao's case (supra) this Court considered this aspect and held that the doctrine of promissory estoppel does not apply when a false certificate has been obtained and fraud has been played on the authorities. In that case, as a special case, the direction to cancel the admission was quashed.
10. In a recent case, in P. Vijayababu v. Principal, Gandhi Medical Colleges, P.A. Choudhary, J. has considered the question elaborately which was followed by me in W.P. No. 3808/85 dt. Nov. 30, 1988, wherein it was held that a party who played fraud cannot rely on equity and equally a party who is not merely an a better but even a premier to the perpetuation of the constitutional fraud, is not entitled to the equitable relief under Art. 226 of the Constitution and this Court should not be over zealous to protect the so called rights of the aggressor. The ratio of Choudary, J. was upheld by the Division Bench of this Court consisting of Yogeshwar Dayal, CJ. and Jagannadha Rao, J. in Writ Appeal No. 884 dated June 7, 1988. I respectfully agreed with the above ratio and I have also held that "when a deliberate false certificate and consistent attempt was made to create false record to secure provisional admission, merely because the petitioner has completed the course of study, there is no illegality in cancelling the provisional admission given to the petitioner this Court would be loath to exercise its constitutional duty under Article 226 of the Constitution encouraging such acts of fraud perpetuated and perpetrated by plains people and would wield the power to elongate and enliven the constitutional promise of social and educational justice to the Tribals, lest it would be a teasing illusion to the vulnerable tribals". The same ratio would apply to the facts in this case. Consistently false record was created to show that the first petitioner is a schedule tribe. Accordingly I hold that the doctrine of promissory estoppel does not apply to this case. After reference to the Director, the petitioner delayed for long and at the threat of disciplinary action the details of social status were furnished in 1983. In the nature of this it took considerable time to unearth the falsity of the claim by securing the necessary records at several undisclosed places connecting obviously from the link records. The delay is inescapable and the first petitioner cannot take advantage thereof.
11. In Nageswara Rao's case (3 supra), no doubt, my learned brother Seetharama Reddy, J. has considered that the doctrine of equitable estoppel would apply and held that the cancellation is not warranted. But in view of the march of law after the judgment of my learned brother Seetharama Reddy, J., and in view of the approval by the Division Bench and on the facts and circumstances in this case, the ratio in the above cannot be extended. Accordingly I hold that the first petitioner is a Kapu and not a Konda Kapu (Scheduled Tribe). I further find that there is no manifest error apparent on the face of the record warranting interference. The writ petition is accordingly dismissed. No costs. Advocate's feeZ Rs. 500/-.