IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) THURSDAY, THE NINTH DAY OF DECEMBER TWO THOUSAND AND TEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26281 of 2001 Between: Trinath Dolai ……PETITIONER(S) a n d Revenue Divisional Officer, Tekkali Revenue Division, Srikakulam District and others ……RESPONDENT(S) THE HON'BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION No.26281 of 2001 ORDER: The point that arises for determination in this writ petition is whether the proceedings in D.Dis.No.2649/2001 G dated 20.10.2001 of the first respondent i.e. Revenue Divisional Officer, Tekkali Revenue Division of Srikakulam District, refusing to issue Bentho-Oriya caste certificate to the petitioner are illegal and contrary to the provisions of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short – ‘the Act’), and if so whether this Court should issue a direction to the first respondent to issue the said caste or community certificate to the petitioner. To decide the point, the respective cases of the parties and their contentions should be noted. The case of the petitioner is this. The petitioner belongs to ‘Bentho Oriya’ community which a Scheduled Tribe in our State. It must be noted here itself that this ‘Bentho Oriya’ community is shown in Item No.17 in Part-I of the Schedule (i.e. for our State) as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950 promulgated by the President of India under Article 342 (1) of the Constitution. It can, therefore, be said that the above community is a Scheduled Tribe community in our State. Further the concerned Revenue Divisional Officer/ Sub-Collector having territorial jurisdiction is the competent authority for issuing ‘Bentho Oriya’ caste certificate and this is made clear in sub item 6 of item 5 in the annexure appended to the Rules framed under the Act. The further case of the petitioner is that some time prior to the filing of the writ petition which is of 2001 he secured a job in Railways on the basis of reservation provided for ‘Bentho Oriya’ community. The petitioner has in this connection stated that earlier he secured two certificates one in the year 1985 and the other in 1987 showing that he belongs to ‘Bentho Oriya’ community both issued by the Mandal Revenue Officer, Kanchili, respectively and he secured the above job on the strength of those certificates. It is the case of the petitioner that the above two certificates were never questioned by any authority. Mentioning about the circumstances which necessitated him to file this Writ Petition, the petitioner has stated that just before the filing of the Writ Petition, the railway officials insisted upon him to furnish a fresh caste certificate showing that he belongs to ‘Bentho Oriya’ community from the first respondent in view of the provisions of the Act for giving him promotion. The petitioner says that accordingly he submitted an application in the prescribed proforma on 17.08.2000 before the first respondent and along with that application he also submitted the earlier caste certificates obtained by him in the year 1985 and 1987. It should be noted at this stage that the petitioner has mentioned about certain writ petitions filed by one Damodara Pradhan belonging to the same ‘Bentho Oriya’ community and also by him i.e. Writ Petition No.17191 of 2001 for a direction to the first respondent and the concerned authority to consider his application and dispose it off as there was a delay and according to the petitioner his writ petition was allowed directing the first respondent to consider his application and pass necessary orders. These details are not necessary. The further version of the petitioner is that subsequently the second respondent issued a notice to him to attend an inquiry on 04.09.2001 at 11.00 AM along with certain document and that he, accordingly, attended the said enquiry and submitted the required information and the necessary documents. The grievance of the petitioner is that subsequently the first respondent without considering his case properly in accordance with the Act and the provisions of the Rules framed thereunder, issued the impugned memo rejecting his application for the caste certificate. The impugned memo dated 20.10.2001 which is filed by the petitioner himself would show that the first respondent rejected the case of the petitioner, firstly, on the ground that the petitioner failed to show that he belongs to ‘Bentho Oriya’ community and, secondly, on the ground that the enquiry report of the Mandal Revenue Officer discloses that the petitioner belongs to ‘Odiya’ community and not ‘Bentho Oriya’. Challenging this memo, the petitioner has filed this writ petition questioning the same on various grounds and his main ground is that the first respondent did not consider the earlier caste certificates filed by him which were valid and further he came to wrong conclusion on the appreciation of documents filed by him. The impugned memo refers to certain electoral rolls of 1951 which was not filed by the petitioner but the petitioner says that the said electoral rolls are very much available in the office of the first respondent himself and he should have verified them in his office itself and this aspect will be dealt with at a litter later. The respondents did not file counter for considerable length of time. In view of the same, this Court earlier on 10.06.2010 passed an order observing that respondents are not serious about the matter and in view of the same directed the respondents not to draw their salaries. Subsequently, the first respondent filed counter affidavit along with W.V.M.P.No.2493 of 2010 urging for vacating the order dated 10.06.2010 and the second respondent also filed an additional counter affidavit. Thereupon, the above order dated 10.05.2001 was revoked. These facts are mentioned as they are borne out by the record. The first respondent in his counter firstly pleaded that this writ petition is not maintainable inasmuch as the petitioner has got a right of appeal against the impugned memo under Section 7 of the Act which provides for an appeal against an order passed by the competent authority rejecting the caste certificate and that is an effective alternative remedy. It is true that the petitioner has got an effective alternative remedy against the impugned memo but he did not pursue that remedy and instead straightaway filed this writ petition in the year 2001. We are now in the first week of December 2010. In view of this long lapse of time, I am of the opinion that the matter should be decided by this Court instead of again driving the petitioner to pursue the alternative remedy at this distance of time. Then turning to the case of respondents, the first respondent pleaded that simply because the petitioner possesses a caste certificate issued earlier that cannot be a ground for granting him a fresh caste certificate showing that he belongs to ‘Bentho Oriya’ community and when once the petitioner has made an application for a fresh caste certificate, matter has to be enquired into under Section 5 of the Act and his enquiries into the matter revealed that the petitioner has failed to prove that he belongs to ‘Bentho Oriya’ community. Elaborating on this aspect, the first respondent further pleaded that the application of the petitioner has been thoroughly enquired into and the said enquiry revealed that the birth register maintained by the authorities of ‘Pradhana Puttuka’ which is the hamlet of the petitioner and his place of birth showed that the petitioner’s father Sri Gurunadha Dolai himself got recorded in the birth register that the petitioner belongs to ‘Odiya’ caste in the said birth register. He stated that the birth register containing the entries on 13.02.1969 support his above contention. The petitioner’s date of birth is stated as 13.02.1969 by the first respondent and he further pleaded that the entries in this birth register are a strong minus point for the petitioner and he cannot now claim that he belongs to ‘Bentho Oriya’ community. The counter of the first respondent and the impugned memo shows that the first respondent got an enquiry made by the Mandal Revenue Officer, Kanchili, which is permissible under clause (f) of Rule 5 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes & Backward Classes) Issue of Community, Nativity and Date of Birth Certificates Rules, 1997, framed under the Act. The above reason is the only reason given by the first respondent in his counter for rejecting the application of the petitioner and this reason is also mentioned in the impugned memo. However, in the impugned memo dated 20.10.2001 it is also mentioned by the first respondent that the petitioner even failed to produce the electoral rolls of 1951 showing that his father or fore-fathers are described as belonging to ‘Bentho Oriya’ community which can be looked into as per the Government Memo No.22427/CV/2/93 dated 03.05.1999 which is also quoted in the impugned memo (please see last paragraph in the impugned memo) and this is given as the additional reason by the first respondent. In the additional counter affidavit filed by the second respondent what is mentioned is that the records pertaining to the petitioner’s case were missing in the office of the first respondent and could not be traced and, therefore, they could not produce the same. The learned counsel for the petitioner argued that the impugned memo shows that the first respondent relied upon the birth register and also the failure of the petitioner to produce the voters list of 1951 in rejecting the application of the petitioner and she argued that the entries in the birth register are not correct and the voters list of 1951 is available very much in the office of the first respondent or the revenue authorities concerned and therefore the first respondent should have verified them from his office as the petitioner was not in a position to produce the same and this failure on the part of the first respondent vitiates the order. She then argued that the first respondent did not consider the earlier certificates of 1985 and 1987 issued to the petitioner which remain valid under Section 21 of the Act as they were not cancelled and this is also a factor which vitiates the order. Basing on the above pleadings, the learned counsel for the petitioner argued that the impugned memo should be set aside and the respondent should be directed to issue a caste certificate to the petitioner showing him as belonging to ‘Bentho Oriya’ community which is a Scheduled Tribe in our State. On the other hand, the stand of the respondents is made clear in the counter of the first respondent and it is already mentioned supra. Before the point is taken up it must be noted that it is the version of the petitioner that earlier he was given one caste certificate in October 1985 and another caste certificate in August 1987 by Mandal Revenue Officer, Kanchili, showing him as belonging to ‘Bentho Oriya’ community and he got the job in Railways basing on the reservation for Scheduled Tribes on the strength of those certificates. It may also be noted that under Section 21 of the Act a caste certificate issued earlier remains valid unless it is cancelled under the provisions of the Act. The version of the petitioner is that subsequently railway authorities insisted him to get a fresh caste certificate under the provisions of the Act for giving him promotion and therefore he had to make an application for a fresh caste certificate which resulted in the impugned memo. It is not known why the railways have insisted upon the petitioner to get fresh caste certificate when the earlier certificates given to him remain valid and the petitioner could not make this aspect clear in his affidavit and his learned counsel also could not explain this in the course of arguments. The railways is not a party to this writ petition and no relief is claimed against the railways and hence the question of granting any relief against the railways basing on the earlier caste certificates of the petitioner does not arise. Now turning to the point, the impugned memo of the first respondent shows that he rejected the application of the petitioner, to repeat, only on two grounds. The first ground is that the entries in the birth register relevant to the petitioner for his village show that his father himself while giving information for recording the entries in the said register stated that the petitioner belongs to ‘Odiya’ caste. The second reason given in the impugned memo is that the petitioner could not produce the voters list of 1951 to show that his father or fore-fathers were shown as belonging to ‘Bentho Oriya’ community. The first respondent did not consider the effect of the earlier two caste certificates of the petitioner i.e. one of 1985 and the other of 1987 which are mentioned supra and to what extent they can help the petitioner to uphold his claim or whether they are invalid certificates as having not been issued by the competent authority. Nothing is discussed by the first respondent in the impugned memo about the said certificates. The plea of the petitioner is that he cannot produce the electoral rolls or voters list of 1951 and they are very much available with the revenue authorities or the concerned authorities relating to the elections and the first respondent could have himself verified them or given a chance to the petitioner to call for the said records or produce the certified copies. The first respondent did not consider as to under what circumstances the petitioner could not produce the voters list of 1951. In my opinion the first respondent should have expressed an opinion on merits regarding the above aspect, especially, the validity or otherwise of the earlier caste certificates of the petitioner and if necessary he should have also referred the matter to the scrutiny committee constituted under Rule 7 of the above Rules pertaining to issue of community certificates for its opinion and guidance. In the above circumstances, I am of the opinion that the impugned memo of the first respondent cannot be said to have been passed by discussing all the aspects of the matter and, therefore, the same has to be set aside. The question now is what should this Court do after setting aside the impugned memo. It may be noted that there is no material before this Court except the true copies of the earlier caste certificates filed by the petitioner’s counsel in order to decide whether the petitioner is entitled to a caste certificate showing him as belonging to ‘Bentho Oriya’ community. Thus, the only course open now is to remand the matter back to the first respondent to decide the case of the petitioner afresh taking into account all the material which the petitioner may produce as necessary giving due opportunity to the petitioner to prove his case. The first respondent should also take into account the earlier two certificates filed by the petitioner and consider their effect on the petitioner’s case and express an opinion about the same and it is always open for him to refer the matter to the scrutiny committee also in case he is of the opinion that he needs any guidance from that committee. Thus, the point is decided accordingly. The Writ Petition is allowed and the impugned order is set aside and the matter is remitted back to the first respondent to pass an order afresh on the application of the petitioner. No costs. ______________________ N.RAVI SHANKAR, J 9th December 2010 CVRK