Andhra Pradesh High Court - Amravati
T.Varahalu vs The Government Of Andhra Pradesh on 17 October, 2019
Author: M.Ganga Rao
Bench: M.Ganga Rao
THE HON'BLE SRI JUSTICE M.GANGA RAO
WRIT PETITION No.17667 OF 2004
ORDER:
The petitioner, who belongs to 'Konda Kapu' community, which is included in the Scheduled Tribes category and native of Chintaluru Village, Prathipadu Taluk, filed this writ petition questioning G.O.Ms.No.45, Social Welfare (CV.2) Department, dated 26.05.2004 issued by the first respondent, whereby rejected the petitioner's appeal confirming the proceedings of the second respondent dated 24.04.2002 thereby the second respondent- District Collector exercising the power under Sub-Rule 7 of Rule 9 of the Andhra Pradesh (SCs, STs and BCs) Issue of Community, Nativity and Date of Birth Certificate Rules, 1997 issued through G.O.Ms.No.58, S.W.(J) Department, dated 12.05.1977 cancelled the Konda Kapu (ST) Caste Certificate of the petitioner, as being illegal, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India.
The petitioner was born on 01.05.1964 and he was given Community Certificate on 23.06.1977 by the Tahsildar, Prathipadu Taluk stating that he belongs to konda kapu (ST community) and thereafter, Nativity Certificate was issued by the Tahsildar, Prathipadu, stating that he is the native of Chintaluru Village, Prathipadu Taluk and passed SSC. He was appointed as Village Extension Officer (VEO) on 09.10.1985 in the Agriculture Department and posted to Eethakota Village, Ravulapalem Mandal. Thereafter, he was transferred to Rampachodavaram on 08.05.1989. A notice vide Rc.No.3673/88 was served on him by the Mandal Revenue Officer to present before him along with 2 MGR, J W.P.No.17667 of 2004 Community Certificate and Date of Birth Certificate to conduct enquiry. Accordingly, he appeared before the Mandal Revenue Officer on 19.12.1988, 20.01.1989 and also produced the School Certificate and Date of Birth Certificate, in which his caste is shown as 'konda kapu'. His father and his father-in-law were also appeared on 16.01.1989 before the Mandal Revenue Officer and they submitted his Caste Certificate, Transfer Certificate and voters list of 1980. All the members of his family were shown in the voters list of 1980 as they belong to konda kapu community i.e., ST Category. An enquiry about the community of the petitioner was initiated at the instance of Assistant Director of Agriculture, Amalapuram, vide proceedings dated 31.10.2000. The Mandal Revenue Officer submitted a report to the District Collector, East Godavari District, Kakinada, after due enquiry stating that Tede Varahalu (petitioner) and his family are following the traditions and customs of tribal people. They are also celebrating the Hindu festivals and after migration from Velangi Village of Sankhavaram Mandal to Chintaluru Village, they have developed marital relations with non-tribal community i.e., kapu community and in the enquiry, it is revealed that Tede Varahalu and his ancestors belong to konda kapu community. However, the District Collector cancelled the community certificate issued to the petitioner on 30.05.1989. Aggrieved by the said order, the petitioner filed W.P.No.7105 of 1989 before this Court. This Court by order dated 30.05.1989 in W.P.M.P.No.9291 of 1989 directed the respondents to continue the petitioner in service as Village Extension Officer, Agriculture Department until further orders. W.P.No.7105 of 1989 was allowed on 12.06.2000 by setting aside 3 MGR, J W.P.No.17667 of 2004 the impugned order dated 30.05.1989 and remitted the matter back to the second respondent for fresh enquiry and disposal according to law. As per the orders of this Court, the matter was placed before the District Level Scrutiny Committee to enquire the matter. The Committee issued notices and conducted enquiry on various dates. The District Level Scrutiny Committee based on the records like birth and death registers etc., pertaining to the petitioner's surname 'Tadi' castes in the village or his family members, and keeping in view that the genealogical information, marital relationships, birth and death entries photostat copies available on record, recommended to the Collector that the petitioner and his family members belong to Kapu (OC) caste, but not konda kapu (ST) caste and also further recommended to cancel their konda kapu (ST) caste certificates obtained from the Revenue Authorities in the District by misrepresenting the facts. Based on the report, the Collector issued notice to the petitioner to attend before him on 31.12.2001. But, the Collector after examining the records and reports, the petitioner's caste certificate was cancelled vide proceedings dated 24.04.2002. Aggrieved by the same, he preferred an appeal under Section 7(2) of the Andhra Pradesh (SCs, STs and BCs) Regulation of Issue of Community Certificate Act, 1993 (Act No.16 of 1993) before the first respondent Government. The Government called for para wise remarks and records. The District Collector furnished records and remarks with reference to the appeal of the petitioner and the petitioner was given personal hearing on 28.03.2003 and final hearing on 28.02.2004. But, the first respondent observed that the petitioner failed to produce any additional evidence in support of his social 4 MGR, J W.P.No.17667 of 2004 status claim. Even though ample time was given to the petitioner, he has not filed any valid documentary evidence, in support of his ST konda kapu caste claim except school records and voters list, which are not a valid documentary evidence to determine the caste of the individual. The Birth and Death Registers of Chintaluru Village revealed that the caste of Tade surname was recorded as kapu (OC). The appeal is dismissed confirming the order of the second respondent. Against the order of the first respondent passed in G.O.Ms.No.45, dated 26.05.2004, the petitioner filed this writ petition.
Sri K.Satyanarayana Murthy, learned counsel appearing for the petitioner, would contend that the first respondent has not independently considered all the evidence available on record, but he reiterated the findings of the District Level Scrutiny Committee and findings of the District Collector, which are contrary to the evidence available on record. The petitioner was given community certificate in the year 1977 by the competent authority, after due enquiry. The order of cancellation of petitioner's community certificate is passed without taking into consideration the report of the Mandal Revenue Officer submitted on 31.10.2000, Transfer Certificate of the petitioner dated 16.07.1980 and also voters list of 1980, wherein it is specifically mentioned that the petitioner belongs to konda kapu (ST) category, but the Collector strangely relied on the photostat copies of birth and death certificates of kapu community people whose surname is 'Tade'. But, the Collector has not given any cogent reasons for not considering the extract of the voters list, Transfer Certificate and evidence of the petitioner's father and his father-in-law as they belong to konda 5 MGR, J W.P.No.17667 of 2004 kapu (ST) community. He would further contend that the Collector repeatedly got enquired into the matter through the Mandal Revenue Officer until they reported that the petitioner is not belongs to konda kapu community and belongs to kapu community only by referring to the invalid evidence procured by Mandal Revenue Inspector and Mandal Revenue Officer stating that the genealogy of petitioner's family in relation to marital status of maternal side reveals that they belong to kapu community. But, as per Rule 5(B) of Act 16 of 1993, they have to collect customs of konda kapu community people residing in that area, anthropology of the community and thereafter, they could find out the surnames. The respondent authorities have not conducted enquiry comprehensively in that direction to meet the requirements of law and they conducted a farce of enquiry. The District Level Scrutiny Committee has not conducted any independent, proper enquiry and nobody was examined in the enquiry. He relied on the decision of this Court in B.Manjula Vs. District Collector, Civil Supplies, Kurnool and others1, wherein it is held that the enquiry should be conducted by giving full opportunity to aggrieved person which means examination and cross examination of witness and consideration of the legally admissible evidence. He further submits that even conduct of successive enquiries against the petitioner in the absence of any fraud in obtaining his social status certificate konda kapu (ST) certificate is in violation of Article 21 of the Constitution of India. In support of his contention, he placed his reliance on the decision of Division Bench of this Court in Government of A.P. and 1 2015 (3) ALD 617 6 MGR, J W.P.No.17667 of 2004 another v. R.K. Ragala and another2, wherein it is held that a citizen is entitled to live with dignity and without being harassed by repeated enquiries. Based on the Committee's report, the District Collector cancelled the community certificate of the petitioner. The first respondent, being a statutory appellate authority, has to independently consider the entire evidence available on record. The first respondent appellate authority was carried away by the orders of the District Collector, which are under appeal and also District Level Scrutiny Committee report. The Community Certificate issued on 23.06.1977, the voters list of 1980, and also the petitioner's Transfer Certificate show that the petitioner belongs to konda kapu (ST) community. But, these documents are not weighed with the authorities. However, respondent Nos.1 and 2 have taken into consideration only the birth and death registers of people whose surname is 'Tade'. The authorities recording the birth and deaths are not competent to record community of the person even if they recorded the community or social status of the person is not conclusive proof. However, it is weighed with the authorities and cancelled the certificate of the petitioner.
Per contra, learned Assistant Government Pleader appearing for the respondents, while reiterating the contents of the counter filed by the second respondent, has taken this Court to para Nos.8 and 10 of the counter, the impugned G.O. and also the District Collector's proceedings and stated that based on the report of the Mandal Revenue Officer, Prathipadu, District Level Scrutiny Committee conducted enquiry and opportunity was given to the 2 AIR 1994 A.P. 238 7 MGR, J W.P.No.17667 of 2004 petitioner to place his evidence before the Committee. Based on the Committee report by independent application of mind, the second respondent came to the conclusion that the petitioner belongs to kapu (OC) community, but not konda kapu (ST) community and also first respondent appellate authority issued the impugned G.O. after giving opportunity to the petitioner to put forth his case. When he failed to place any reliable evidence in support of his claim, on perusal of the entire evidence available on record, the appellate authority dismissed the appeal. There is no illegality or irregularity in passing the impugned order, which warrants interference of this Court and prayed to dismiss the writ petition.
This Court, after careful consideration of all the documents filed in support of the writ petition and considering the contentions of the counsel, found that the petitioner was issued community certificate in the year 1977 by the competent authority; he studied X Class; thereafter, he was appointed as Village Extension Officer on 09.10.1985 in the Agriculture Department under the category of 'ST' konda kapu community. Thereafter, he was transferred to Rampachodavaram on 08.05.1989. Based on the request of the Assistant Director of Agriculture, Amalapuram, an enquiry was initiated to find out whether his claim that he belongs to konda kapu (ST) community is genuine. The Collector called for a report from the Mandal Revenue Officer at the earliest point of time. The Mandal Revenue Officer submitted a report on 31.10.2000 stating that the petitioner is following the customs and traditions of konda kapu and he belongs to konda kapu community and they are following traditions and customs of tribes. In spite of remand from 8 MGR, J W.P.No.17667 of 2004 this Court in W.P.No.7105 of 1989, the respondent authorities have not conducted proper enquiry by examining any witness, but behind back of the petitioner, they collected some evidence and the petitioner was not given any opportunity to cross-examine the witnesses. But the petitioner in support of his claim had submitted community certificate issued by the Tahsildar and Transfer Certificate issued by the school authorities where he studied and voters list. But, the District Level Scrutiny Committee submitted a report to the District Collector stating that the Mandal Revenue Officer has failed to appreciate the statements of the native villagers, who have deposed on behalf of the respondent and he submitted a report on presumption of surnames which are not admissible in law. However, the District Level Scrutiny Committee submitted a report to the Collector and for easy reference, the observations of the Committee would be reproduced hereunder:
Sl.No. Copy of documentary Observations of the District Level evidence filed to support Scrutiny Committee S.T. caste claim
1. Copy of community The District Level Scrutiny certificate got issued by Committee observed that copy of Tahsildar, dt. 23-6-1977 community certificate obtained from the Tahsildar/Mandal Revenue Officer, is not a valid documentary proof to determine the caste of the individual when the enquiry was going on the caste verification.
2. Copy of Transfer The District Level Scrutiny Certificate issued by Committee observed that as per Maclaurin High School, Govt. Memo No.18188/88, dt. The H.M. dt. 2-5-1981 School records are not a documentary evidence to determine the caste of the individual.
3. Copy of voters list pages The District Level Scrutiny Committee 19,20, containing observed that voters list is not a (S.Nos.896 dt.1980) documentary evidence to determine the caste of the individual because at the time of enumeration the caste furnished by the individuals will be recorded in the Voters list but no enquiry on the caste aspect will be taken on the caste of the individual.
4. Copy of certificates issued The District Level Scrutiny by Gram Panchayat Committee observed that certificate
9 MGR, J W.P.No.17667 of 2004 Sarpanch, Chintaluru, dt. issued by Gram Panchayat 22-5-1989 Sarpanch is not authority to issue the said certificate.
5. Copy of Study certificate The Dist. Level Scrutiny Committee from 29-6-69 to 12-6-74 observed that the Study certificates issued by H.M.MPUP.School, are not a valid documentary Chintaluru dt.11-2-1997 evidence to determine the caste of the individual.
6. Copy to study certificate The Dist. Level Scrutiny Committee from 1974 to 1976 issued observed that the study certificates by Head of Institution dt. are not a valid documentary 10-2-1997 evidence to determine the caste of the individual.
7. Copy of Nativity Certificate The District Level Scrutiny issued by Tahsildar, Committee observed that the Prathipadu, dt. 27-2-1988 nativity certificate issued by Tahsildar, Prathipadu is not a valid documentary evidence to determine the caste of the individual.
8. Copy of statements given The District Level Scrutiny by elders of Chintaluru dt. Committee observed that Nil statements are not a valid documentary evidence to determine the caste of the individual.
The District Level Scrutiny Committee also examined the Genealogical information etc., and observed as follows:
1. Genealogical information:- As per the genealogical information available on records the following facts noticed. Sri Tade Veeraswamy, Paternal grand father of the candidate has got one Son Tade Lovaraju father of the candidate. He has got three children. One female child and two male children. They are 1) Tade Subbalakshmi 2) Sri Tade Vijayababu and 3) Tade Varahalu.
1. Tade Rajesh. 2. Tade Veerababu and 3. Tade Devi (candidate's brother's children) Smt. Tade Subbalakshmi (Sister of the candidate) had only one son his name is Sreenu.
Sri Tade Verahalu had two children 1. Tade Madhuri 2. Tade Prasanthi.
Maternal Side:- Sri Devisetti Venkataswamy maternal great grand father of the candidate. He married Devisetty Suramma great grand mother of the candidate. They are having two children. 1. Devisetti Mahalaxamamma, grand mother of the candidate. 2. Devisetti Laxmipathi. Devisetti Mahalaxmamma and Dasari Venkanna had two children 1. Dasari Manikyam (mother of the candidate) 2. Dasari Nagulu (maternal uncle of the candidate).
Most of their castes were noted as Kapu in the genealogical tree information.
10 MGR, J W.P.No.17667 of 2004
2) Marital Relations:- As per the genealogical information of tree their marriages as follows: Paternal grand father of the candidate Sri Tade Veeraswamy married Bapanamma Kapu by caste. Sri Tade Lovaraju married Dasari Manikyam, Kapu by caste. Tade Vijayababbu (candidate's brother) married Mahalaxmi Kapu by caste. Tade Subbalaxmi (sister of the candidate) married Dasari Nagulu, Kapu by caste. Sri Tade Varahalu (candidate) married Madduri Rama Tulasi (Kapu by caste). All the marital relationships with Kapu people only.
Birth and Death extracts:- The District Level Scrutiny Committee examined the Photostat copies of birth and death extracts available on records. They are as follows:
1. 1971 death entry in Prathipadu Taluk, Chinthaluru village Sl.No.13 death entry of Tade Ramayamma dt. 3-12-1971 recorded on 14-12-1971 her caste noted as Kapu, the information given by Tade Lovaraju father of the candidate.
2. Chintaluru (v) Birth Register in 1960 Serial No.32 Male child born to Tade Kondayya and Appalakonda their caste recorded as Kapu.
3. In the year 1962 Chintaluru birth entry of Male child to Tade Varahalu and Manikyam (parents of the candidate) caste recorded as Kapu vide Serial No.17.
4. In the year 1968 Chinthaluru (v) Birth entry of female child to Tade Apparao and Rajulamma caste recorded as Kapu vide Serial No.5.
5. In the year 1968, August month the birth entry of Male child to Tade Kondayya and Appalakonda caste recorded as Kapu vide Serial No.28.
Finally the District Level Scrutiny Committee observed though ample opportunity provided to the petitioner, he has not filed any valid documentary evidence in support of his "Kondakapu" (S.T.) caste claim. As a matter of fact as per the observations of the Hon'ble High Court in W.P.No.11051/88 the burden of proof always lies on the individual who claim SC/ST social status. But himself or his Advocate has not filed any recorded valid documentary proof relating to the basic records like birth and death registers etc., pertaining to the caste of the candidate or his family members. Therefore the District Level Scrutiny Committee basing on the aforesaid information available on records keeping in view of the genealogical information, marital relationships, Birth and death entries, Photostat copies available on record came to a conclusion and recommended to the Collector that the caste of Sri Tade Varahalu and his family membes belongs to Kapu (OC) caste, but not Kondakapu (S.T.) 11 MGR, J W.P.No.17667 of 2004 caste and also further recommended to cancel their Kondakapu (S.T.) caste certificates obtained from the Revenue authorities in the District by misrepresenting the facts with a natural justice."
Based on the report of the District Level Scrutiny Committee, the District Collector came to the conclusion that the petitioner belongs to kapu community, but not konda kapu. The District Collector without independent application of mind, merely based on the enquiry report of District Level Scrutiny Committee, cancelled the konda kapu (S.T.) caste certificate of the petitioner.
The first appellate authority, being a quasi judicial authority, has not independently applied its mind and erroneously came to the conclusion that the petitioner belongs to kapu community, but, however, no reasons were given for brushing aside evidence produced by the petitioner i.e, his Caste Certificate, Transfer Certificate, voters list and also evidence of his father and father-in- law.
In view of the above discussion, the impugned G.O. was issued based on improper enquiry. Mere having marital relationship with other community, kapu woman, the petitioner community could not be changed. The law is well settled that if a reserved category woman marries an 'OC' candidate, off-springs of that woman cannot claim reservation. The off-springs of the woman have to claim only the father's community, but not vice- versa. For the reasons stated supra, the impugned G.O. is liable to be set aside.
Accordingly, the Writ Petition is allowed, setting aside the G.O.Ms.No.45, Social Welfare (CV.2) Department, dated 26.05.2004, issued by the first respondent. There shall be no order as to costs.
12 MGR, J W.P.No.17667 of 2004 Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
__________________________ JUSTICE M.GANGA RAO Date: 17.10.2019 Ivd 13 MGR, J W.P.No.17667 of 2004 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION No.17667 OF 2004 Date: 17.10.2019 Ivd