THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.3225 of 1999 Dated:23.02.2010 Between: S.Suryanarayana Jana Deo, And another. …Petitioners and The State of A.P., Rep.by the Prl.Secretary (Social Welfare Department), Hyderabad, And others. …Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.3225 of 1999 ORDER: The notice in Form-V as issued by the Chairman of the Scrutiny Committee (Joint Collector), dated 11.01.1999, calling upon the petitioners to produce all documentary evidence in support of their community claim before the Committee, is under challenge in this writ petition. By the impugned notice in Form-V the petitioners were informed that a reference had been received by the Scrutiny Committee from the competent authority regarding doubts about their claim that they belonged to the Scheduled tribes; they should attend the enquiry regarding their community claim on 30.01.1999; and should furnish all documentary evidence in support of their community claim failing which the Committee would finalize their recommendations based on the material/documentary evidence made available to them by the competent authority. This notice is under challenge before this Court on two grounds. 1) Since Section 5 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes & Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (Andhra Pradesh Act No.16 of 1993) enables an enquiry only into false/fraudulent community certificates, no enquiry is permissible with regards doubtful claims. 2) Repeated enquires regarding the community status of the petitioners is impermissible. The petitioners claim to belong to “Konda Dora” community in Saluru within the State of Andhra Pradesh. While the first petitioner is employed in Steel Authority of India Ltd, the second petitioner is employed in Hindustan Aeronautics Limited. The Tahsildar, Saluru, issued a caste certificate to the first petitioner on 12.8.1979 pursuant to which he got his name registered in the District Employment Office at Visakhapatnam. The District Employment Office is said to have addressed a letter dated 03.09.1979 to the Tahsildar, Saluru, seeking clarification regarding the genuineness of the community certificate issued to the first petitioner. A copy thereof was also marked to the District Tribal Officer, Srikakulam. Pursuant thereto, the Tahsildar is said to have sent a clarification stating that the first petitioner originated from a Zamindar’s family of Konda Dora tribe. Thereafter, the first petitioner secured employment in the Steel Authority of India Limited and joined its services on 06.09.1980. He received a notice from the Mandal Revenue Officer, Saluru, in proceedings D.Dis.No.1270/90. Thereafter, an enquiry was held for confirmation of his caste as directed by the District Collector, Vizianagaram. The first petitioner claims to have submitted a representation with documentary evidence including the affidavit of Sri S.J.Narayana Jana Deo, retired District Judge, his paternal uncle. He also claims to have enclosed a copy of G.O.Rt.No.1583 dated 18.07.1989 pursuant to which the Mandal Revenue Officer is said to have closed the matter. It is the first petitioners’ case that the genuineness of his community certificate was not disputed for over a period of twenty years. The second petitioner joined Hindustan Aeronautics Limited in Orissa State as a Clerk-cum-Typist on 06.02.1969. The Tahsildar, Saluru issued a caste certificate on 13.08.1979 holding that he belonged to the Konda Dora tribe. The 2nd respondent would submit that his community certificate was neither doubted nor questioned by any authority later. The petitioners would refer to the Visakhapatnam District Manual by D.F.Carmichel of 1969, and to the reputed works of Edger Thurston. They would submit that the impugned notice was arbitrary, without jurisdiction and in violation of principles of natural justice. It is the petitioners case that, since their caste certificates issued by the Tahsildar, Saluru was ratified in successive enquiries and was never doubted, it cannot now be reopened or reagitated under the provisions of Act No.16 of 1993 or the Rules made thereunder. They would contend that the Act and the Rules do not confer jurisdiction on the respondent to make a suo motu or a de novo enquiry on the ground of “doubts” of the competent authority as the community certificate has been in force for the past twenty years and it is only with regards fraudulent certificates that the Act provides for cancellation. In the counter affidavit filed on behalf of the respondents it is stated that Deputy Manager (Personal), Steel Authority of India Limited, Visakhapatnam, and the Collector, Srikakulam, had referred the “Konda Dora” (ST) community certificate of the first petitioner, issued by the Tahsildar, Saluru in 1979, for verification and report; similarly the Senior Manager (P & A), Hindustan Aeronautics Limited, Bangalore, vide proceedings F/A/SM (P&A)/22/832/89 dated 10.02.1989, had referred the “Konda Dora” (ST) social status claim of the second petitioner for enquiry as the National Commission of SCs/STs had suspected its genuineness; the matter was referred to the Mandal Revenue Officer, Saluru for enquiry and report; after due enquiry the Mandal Revenue Officer, Saluru had reported that the petitioners were close relatives of Sri L.N.Sanyasi Raju, Ex-M.L.A and Ex-Zamindar of Saluru whose social status claim was pending enquiry before the Government; the caste verification in respect of the petitioners could not be finalized until receipt of final orders of the Government relating to the social status claim of Sri L.N.Sanyasi Raju; and W.P.No.11916 of 1987 was pending before the High Court with regards the caste status of Sri L.N.Sanyasi Raju. On being requested to communicate orders, if any, passed regarding the caste status of Sri L.N.Sanyasi Raju the Government, vide memo dated 12.12.1998, informed that Sri L.N.Sanyasi Raju did not belong to “Konda Dora’ (ST); he could not be treated as a member of the Scheduled Tribes; and, in view of the above and in accordance with Rule 9(1) of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes & Backward Classes) Issue of Community, Nativity and Date of Birth Certificates Rules, 1997, (hereinafter called the 1997 Rules), the matter was referred to the District Level Scrutiny Committee for its enquiry. The committee was requested to communicate its findings on the social status claim of the petitioners. The Chairman of the District Level Scrutiny Committee issued notices in Form-V to both the petitioners through their respective organizations. While both the petitioners appeared before the enquiry committee, they did not produce any evidence, either documentary or oral, in support of their social status claim of belonging to the “Konda Dora” tribe. As the impugned show cause notice in Form-V is questioned on the ground of inherent lack of jurisdiction it is necessary to briefly note the relevant statutory provisions. Section 5 of Act No.16 of 1993 relates to cancellation of false community certificates. Subsection (1) thereof provides that where, before or after the commencement of the Act, a person not belonging to any of the Scheduled Tribes has obtained a false community certificate to the effect that either himself or his children belongs to such tribes, the District Collector may, either suo motu or on a written complaint by any person, call for the record and enquire into the correctness of such 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 a representation. Under Section 6 of Act No.16 of 1993, where an application is made to the competent authority under Section 3 for issue of a community certificate in respect of a Scheduled Tribe, or in any enquiry conducted by the competent authority or the authority empowered to cancel the community certificate, the burden of proving that he belongs to such a tribe shall be on the claimant. Under Section 11(1) whoever, not being a person belonging to Scheduled Tribe, secures appointment in the Government/local authority or in any other company or corporation owned or controlled by the Government, and enjoys any other benefits intended exclusively for such tribes, by producing a false community certificate he shall be liable to be discharged from the said service forthwith and any other benefits enjoyed by him shall also be withdrawn. Section 11(4) provides for imposition of punishment of rigorous imprisonment in cases where it is established that a false community certificate had been obtained. Section 20(1) enables the Government, by notification, to make rules for carrying out all or any of the purposes of the Act. In exercise of the powers conferred under Section 20(1) of Act No.16 of 1993, the Government made the 1997 Rules. Rule 5 of the 1997 Rules prescribes the procedure for verification and, under clause (i) thereof, the competent authority, in the case of doubtful claims, shall refer the matter to the Chairman of the Scrutiny Committee formed at the District Level under Rule 8 i.e., the Joint Collector of the District, for recommendations of the Committee with regard to the issue of the community certificate as applied for. On receipt of the recommendations of the Scrutiny Committee the competent authority is empowered to confirm or reject the claim of the applicant. Under Rule 6 it is the responsibility of the applicant to produce necessary evidence/documents as called for by the District Collector/Scrutiny Committees at the District level, from time to time, while enquiring into the claims for the issue of Community Certificates. Rule 8 deals with the constitution of the Scrutiny Committee at the District Level. Rule 8(1) provides that the Scrutiny Committee, on receipt of the cases referred to it by the competent authority under Rule 5(i), shall conduct an enquiry regarding doubtful claims by giving notice in Form-V to the applicant within the period specified in the notice which is required not to be less than 15 days from the date of service of the notice on the applicant and in no case to be more than 30 days. Rule 8(3) prescribes the procedure for enquiry by the Scrutiny Committee. Rule 9 relates to fraudulent claims and, under sub rule (1) thereof, where the District Collector receives a written complaint from any person, or otherwise has reason to believe that a person not belonging to the Scheduled Tribe has obtained a false community certificate to the effect that he belongs to such a tribe, the District Collector shall refer the case to the Chairman, Scrutiny Committee i.e., Joint Collector of the District formed under Rule 8, to enquire into such cases and send its findings to the District Collector. Under Rule 9(2) the Scrutiny Committee, on receipt of such cases referred to it by the District Collector, shall follow the procedure detailed in Rule 8(d) (1) to (7) except that it shall serve the notice in Form-VI on the person involved in the case. Form-VI is the notice calling upon the person, who has obtained the Scheduled tribe certificate fraudulently, to attend an enquiry with regards his community claim. Section 5 of Act No.16 of 1993 relates to cancellation of false community certificates. There is an inbuilt safeguard in Section 5(1) for an opportunity to be given to the person who is alleged to have obtained a false community certificate, to make a representation before an order of cancellation is passed. The allegation that a false community certificate has been obtained is required to be enquired into under Section 5(1) of the Act. It is only in cases where the competent authority is satisfied that such a false community certificate has been fraudulently obtained, is it empowered to cancel the certificate issued earlier. False caste/community certificates, enquiry into its genuineness having been provided for in Section 5(1), would bring within its ambit an enquiry into both doubtful and fraudulent certificates. Whether a community certificate granted earlier is false, or whether it has been fraudulently obtained, can only be determined after due enquiry by the Scrutiny Committee constituted under the Rules. While Rule 5(i) enables the competent authority to refer doubtful claims, Rule 9 enables him to refer fraudulent claims to the scrutiny Committee. In both cases of doubtful or fraudulent community certificates, the said community certificate obtained earlier is undoubtedly false. Reading Rules 5(i) and 9(1) of the 1997 Rules in any other manner would render it ultravires Section 5 of Act No.16 of 1993. It is well settled that Rules made under the Act have to be read harmoniously with the provisions of the parent Act and as not being contrary thereto. In the absence of a challenge to the vires of the Rules, Rule 5(i) and 9, as also Forms V and VI, must be construed as pertaining to an enquiry with regards the allegation of a false community certificate having been obtained by the person concerned. While the Scrutiny Committee may have issued a notice in Form-V on the ground that the petitioners’ community certificate is doubtful it does not preclude the competent authority, if during such enquiry it comes to light that the petitioners have fraudulently obtained such certificates, to take action under Rule 9, issue a notice afresh in Form-VI, and thereafter take action, for having obtained such fraudulent community certificates, in accordance with law. Since the Rules provide for an enquiry into doubtful claims also, and in the absence of a challenge to its vires, I see no reason to shut out the enquiry on the specious plea that Act No.16 of 1993 does not empower an enquiry to be held into doubtful claims. It is necessary to bear in mind that both under Section 6 of Act No.16 of 1993 and Rule 6 of the 1997 Rules, the burden lies heavily on the person, in whose favour the community certificate was issued earlier, to establish that he belongs to the Scheduled Tribes. The first contention must, therefore, fail. With regards the contention that repeated enquiries cannot be held, it is evident from the averments in the writ affidavit that an enquiry has been caused earlier only with regards the community certificate of the first petitioner. It is not clear as to whether the second petitioner’s scheduled tribe status was subjected to enquiry hitherto. Be that as it may, no immunity in absolute terms can be sought by a person who claims that he belongs to the Scheduled Tribe. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If, and when, a person takes undue advantage of the said beneficent provision by obtaining the benefits of reservation although he is not entitled thereto, he not only plays a fraud on Society but, in effect and substance, plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, the State shall not be a helpless spectator in the matter. (State of Maharashtra v. Ravi Prakash Babulalsing Parmar[1]). A person who enters service producing a false caste certificate, and obtains appointment for the post meant for a Scheduled Tribe thus depriving a genuine candidate of that category of appointment to that post, does not deserve any sympathy or indulgence of the Court. He, who comes to the Court with false claims, cannot plead equity nor would the Court be justified in exercising its equity jurisdiction in his favour. (R. Vishwanatha Pillai v. State of Kerala[2]; Kumari Madhuri Patil v. Addl. Commr., Tribal Development[3]). Likewise, a person who obtains a false certificate, cannot plead estoppel. The principle of estoppel is inapplicable as no promise is made that his false certificate will be respected and accepted by the State. (State of T.N. v. A. Gurusamy[4]; Kumari Madhuri Patil3). Where an appointment in a service has been acquired by practising deceit, such an appointment is no appointment in law and is void from the inception. (R. Vishwanatha Pillai2). The burden of proof of social status is always on the person who seeks Constitutional socio-economic advantages. It is no part of the duty of the State to disprove or otherwise. (Director of Tribal Welfare, Govt. of A.P. v. Laveti Giri[5]). Merely because an employee has continued in service for some length of time there is no prohibition in law for action to be taken against him for having secured employment on the basis of a false caste certificate, since a person who does not belong to the Scheduled Tribes should not be permitted to enjoy the fruits or benefits of reservation. Since the earlier enquiries were not under the Act or the Rules made thereunder, inasmuch as both the Act and the Rules came into force thereafter, the submission that repeated enquiries would violate the petitioner’s fundamental rights under Article 21 of the Constitution of India, is misplaced. Since the Scrutiny Committee has only asked the petitioners to appear, it is for them to do so and satisfy the Committee, by producing all relevant documents and other evidence, that they belong to the “Konda Dora” community and that the community certificates issued to them earlier are genuine. In view of the interim orders passed by this Court, the enquiry before the Scrutiny Committee has not proceeded further. Now that the contentions urged on behalf of the petitioners have not found acceptance by this Court, it is open to the respondents to issue notice afresh to the petitioners herein, give them an opportunity of being heard and, thereafter, take action with regards their community certificates in accordance with law. Subject to the above observations, the Writ Petition is dismissed. However, in the circumstances, without costs. ________________________________________ (RAMESH RANGANATHAN, J) 23.02.2010 Vs/asp [1] (2007) 1 SCC 80 [2] (2004) 2 SCC 105 [3] (1994) 6 SCC 241 [4] (1997) 3 SCC 542 [5] (1995) 4 SCC 32