Andhra Pradesh High Court - Amravati
Kammara Upendrachari vs The State Of Andrha Pradesh on 23 February, 2022
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.8845 of 2021
JUDGMENT:-
1. Heard Sri Subba Rao Korrapati, learned counsel for the petitioner and Sri Amritha Raju, learned Assistant Government Pleader for Services-II.
2. This petition has been filed for the following relief:
"For the reasons stated in the accompanying affidavit, it is hereby prayed that this Hon'ble Court may be pleased to issue an appropriate Writ, Order or Direction more particularly in the nature of Writ of Mandamus declaring the action of 2nd Respondent in not allowing the petitioner to discharge his duties as Senior Assistant in the office of the 3rd Respondent or in any office within the jurisdiction of the 2nd Respondent and not paying the salaries to the petitioner w.e.f., 13-08- 2019, though the proceedings R.Dis.Rc.A5/740/2009, dated 13-08-2019 of the 2nd Respondent was setaside by this Hon'ble Court on 29-01-2020 in W.P12367 &15974/2019 and the Proceedings Rc.C6.531/M/2007 dated 09-04-2020 of the 2nd Respondent was stayed by the 1st Respondent vide Memo No.11021/127/CV.2/2018 dated 1-12-2020, as arbitrary, illegal, in violation of Article 14, 16 and 21 of the Constitution of India, against rule of law and consequently direct the 2nd Respondent to allow the petitioner to discharge his functions/duties as Senior Assistant till attaining the age of superannuation, and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."
3. The petitioner was appointed on the post of Junior Assistant in the Revenue Department and joined on 23.06.1984. Thereafter he was promoted as Senior Assistant. During continuance in service, on some complaint, the petitioner‟s Caste Certificate issued by the Tahsildar, Nandyal in the year 1980, was cancelled by the 2nd respondent i.e., the District Collector, Kurnool vide proceedings Rc.No.C6/531/M/2007, dated 28.03.2009 against 2 which the appeal filed by the petitioner was also dismissed by the 1st respondent/the State on 20.09.2018. Later on, consequent upon the above orders, the petitioner was dismissed from service by order, dated 13.08.2019 by the 2nd respondent under Section 11(1) of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (in short „The Act 1993‟) and Rule 9(x) of the Andhra Pradesh Civil Services (CCA) Rules.
4. Challenging the order dated 13.08.2019, the petitioner filed W.P.No.12367 of 2019 and challenging the order, dated 20.09.2018, he filed W.P.No.15974 of 2019. This Court by common judgment, dated 29.01.2020, allowed both the Writ Petitions. The orders, dated 13.08.2019 and 20.09.2018 were set aside and the District Collector, the 2nd respondent in both the Writ Petitions was directed to issue a notice to the petitioner in terms of Section 5 of the Act, 1993 and thereafter to take a decision on the report of the District Level Scrutiny Committee. The operative portion of the order, dated 29.01.2020 reads as under:-
"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.
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 3 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.
With these observations, both the writ petitions are allowed. There shall be no order as to costs."
5. Learned counsel for the petitioner submits that in the order, dated 29.01.2020 reproduced above, the mentioned order dated 13.08.2019 is the order of dismissal of the petitioner from service and not the order of cancellation of petitioner‟s Caste Certificate.
6. Thereafter, the petitioner‟s caste certificate was cancelled again by order, dated 09.04.2020 passed by the District Collector against which the petitioner filed appeal before the 1st respondent on 25.07.2020, pending before the said authority, in which the operation of the order, dated 09.04.2020 of the District Collector was stayed on 01.12.2020.
7. The learned counsel for the petitioner submits that inspite of the order, dated 29.01.2020, aforesaid when the petitioner was not reinstated in service, he filed W.P.No.8845 of 2021, in which this Court vide interim order, dated 27.04.2021, directed the 2nd respondent to allow the petitioner to discharge the duties as Senior Assistant and pay the salaries due to him every month, and with regard to the payment of salaries with effect from 13.08.2019, it was provided that the same will be decided after the counter- affidavit is filed. Pursuant to the order, dated 27.04.2021 the order for petitioner‟s reinstatement in service was passed on 14.06.2021 and the petitioner joined on 20.06.2021 and is getting salary from the date of joining.
4
8. Learned counsel for the petitioner submits that in view of the dismissal order having been set aside, the respondent No.3 was bound to reinstate the petitioner in service immediately and for the delay on their part in not timely reinstating the petitioner, the petitioner cannot be made to suffer by non-payment of salary for the period due, and in particular, when any fresh order against the petitioner with respect to the petitioner‟s discontinuance from service has not been passed and the petitioner continued in service upto the date of his retirement on 30.09.2021 and merely because of pendency of the appeal against the order of the District Collector in which also the order dated 09.04.2020 of the District Collector has been stayed, the petitioner‟s arrears of salary for the period claimed cannot be withheld.
9. Sri Amritha Raju, learned Assistant Government Pleader for Services-II, submits that the appeal against the order of cancellation of Caste Certificate, dated 09.04.2020 is still pending before the Government/respondent No.1 and as such the petitioner is not entitled for payment of any salary for the period with effect from 13.08.2019 upto 19.06.2021. He submits that by order, dated 09.04.2020, the petitioner‟s Caste Certificate was cancelled and the same was also published in the District Gazette. He has further submitted that in his representation, the petitioner has stated that if there was any mistake in obtaining the Caste Certificate of "KAMMARA" - Scheduled Tribe, it was unintentional and unconscious mistake, and he may be permitted to continue in service for the little left over period as "KAMMARA" - BC-B candidate and in view thereof the petitioner is not entitled for payment of salary.
5
10. In reply to the aforesaid, learned counsel for the petitioner submits that the "KAMMARA" Community is included in „Scheduled Tribe‟ in the State of Andhra Pradesh throughout the State without any area restriction, as per the Constitution (Scheduled Tribes order 1950) as amended upto date. With the similar nomenclature "KAMMARA" or "KAMMARI", is a caste throughout the State of Andhra Pradesh without any area restriction as Backward Class. He submits that it was for the authorities to have correctly determined for issuance of Caste Certirficate, if the petitioner‟s caste "KAMMARA" falls in "KAMMARA - ST" or "KAMMARA - BC-B" as there is no dispute that the petitioner by caste is "KAMMARA" and it was only in that context that the petitioner stated in the representation what is being emphasized by the learned Government Pleader.
11. I have considered the submissions advanced and perused the material on record.
12. From the aforesaid, what is undisputed is that the petitioner entered in service on 23.06.1984 and has retired on 30.09.2021. The order of cancellation of Caste Certificate was quashed by this Court on 29.01.2020 and the order of dismissal from service, dated 13.08.2019 was also quashed. There is no order of discontinuance of the petitioner‟s services, since after the order of dismissal was quashed by this Court. The petitioner was reinstated vide order dated 14.06.2021 and he joined on 20.06.2021 and retired on 30.09.2021. The petitioner as such continued in service and has also been paid salary for the entire period, except the period with effect from 13.08.2019 upto 19.06.2021. Although, the Caste Certificate was again cancelled on 09.04.2020 but in appeal there 6 is stay which appeal is pending for decision, and even any fresh adverse order against petitioner‟s services was not passed under the Act 1993, till before stay of order dated 09.04.2020 in appeal nor thereafter. In view of these facts, this Court does not find any justification on the part of the respondents in not making payment of salary of the period claimed by the petitioner. Pendency of the appeal against the order, dated 09.04.2020 in which the order, dated 09.04.2020 has been stayed cannot be a ground to deny payment of salary to the petitioner for the period in question.
13. So far as the contentions relating to the merit of the Caste Certificate are concerned, i.e. whether the petitioner belongs to "KAMMARA" - Scheduled Tribe or "KAMMARA" - Backward Class, or the with respect to the petitioner‟s contention in his representation, since the matter is pending before the appellate authority, this Court is not entering into that controversy and the same is left to be decided by the appellate authority in accordance with law.
14. For the aforesaid reasons, non-payment of salary to the petitioner for the period in question is illegal, arbitrary and without any justification. It is settled in law that any arbitrary action on the part of the State or State instrumentality is negation of rule of law and violates the fundamental right to equality enshrined under Article 14 of the Constitution of India.
15. Accordingly, the respondents are directed to make payment of arrears of salary to the petitioner, for the period in question with effect from 13.08.2019 upto 19.06.2021 within a period of six (06) weeks from the date of production of copy of this order before the respondents.
7
16. It is clarified that this Court has not observed anything on the merits of the case of either party with respect to the Caste Certificate of the petitioner.
17. It is further clarified that consequent upon the order to be passed in the pending appeal, it would be open for the respondents to proceed in accordance with law under the Act 1993 and the relevant rules.
18. The Writ Petition is allowed with the aforesaid observations and directions.
19. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
__________________________ RAVI NATH TILHARI,J Date: 23.02.2022 SCS 11BbBBBBbB/BBB 8 4 474466446544455554646 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI 47 WRIT PETITION No.8845 of 2021 Date: 23.02.2022 Scs