IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 4599, 15333 and 26129 of 2007 W.P.No.4599 of 2007: Between: J.V.T Krishna Murthy S/o Sri Jani Apparao R/o 31-8-2, LIG-18 Sector V Postal Colony, Visakhapatnam-17. ..... PETITIONER AND 1 Government of Andhra Pradesh Tribal Welfare Department rep by its Director of Tribal Welfare D.S.S. Bhavan, Masab Tank, Hyderabad- 500 028. 2 The Visakhapatnam Port Trust rep by its Chairman, Visakhapatnam- 530 035. 3 The Traffic Manager Traffic Department, Visakhapatnam Port Visakhapatnam-35 4 Mendragutti Kameswara Rao S/o. Anjaiah Port Trust Visakhapatnam, R/o. Type-II-58/591, Port Quarters, Saligrampuram, Visakhapatnam R4 is impleaded as per court order dt. 27-7-2007 in WPMP 8742 of 2007 .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, Order or Direction more particularly in the nature of Writ of mandamus declaring the letter bearing R.c. No. 3844/2006/TRI/VC-6 dated 19-1-2007 of the 1st respondent herein as arbitrary, illegal, capricious and contrary to provisions of the A.P. (SC,ST &BCs) Regulation of issue of Community Certificates Act 1993 and Rules made there under apart from gross violation of right enshrined under Art. 21 of Constitution of India and consequently set a side the same and pass such other order as may be deemed fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.SAI GANGADHAR CHAMARTY Counsel for the Respondents: GP FOR SOCIAL WELFARE WRIT PETITION No. 15333 of 2007 Between: JVT Krishna Murty S/o Sri Jani Apparao R/o 31-8-2, LIG-18 Sector V Postal Colony, Visakhapatnam-17 ..... PETITIONER AND 1 Government of Andhra Pradesh Tribal Welfare Departmetn rep by Director Tribal welfare Mosab Tank, Hyderabad. 2 The District Level Scrutiny Committee rep by Chairman and Joint Collector, Collectorate, Visakhapatnam. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction more particularly in the nature of Writ of Mandamus declaring the conducting of the enquiry as to the social status of the petitioner pursuant to the impugned notice dated 12-07-2007 bearing (M) Rc. No. 106/2007/C5 of the 2nd respondent herein as arbitrary, illegal, capricious and contrary to provisions of the A.p. (SC, ST & BCs) Regulation of issue of Community Certificates Act 1993 and Rules made there under apart from gross violation of right guaranteed to the petitioner under Art. 21 of Constitution of India and consequently set-a side the same and pass such other orders as may be deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.SAI GANGADHAR CHAMARTY Counsel for the Respondents: GP FOR SOCIAL WELFARE WRIT PETITION No. 26129 of 2007 Between: J.V.T.Krishna Murty S/o.Jani Apparao R/o.31-8-2, LIG-18, Sector-V Postal colony, Visakhapatnam-17 ..... PETITIONER AND 1 The Visakhapatnam Port Trust, Rep.by its Chairman Visakhapatnam-530035 2 The Traffic Manager, Traffic Department, Visakhapatnam Port, Visakhapatnam-35 .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly in the nature of writ of mandamus declaring the inaction of the respondents in not promoting the petitioner to the post Assistant Quay Foreman (AQF) even despite of regularization of his services as A Tally Clerk w.e.f. 4.11.1993 as arbitrary, illegal, capricious and violative of the fundamental rights guaranteed under Article 14,21 of Constitution of India and consequently direct to promote the petitioner as Assistant Quay Foreman(AQF) forthwith. Counsel for the Petitioner: MR.SAI GANGADHAR CHAMARTY Counsel for the Respondents: MR.P.SRI RAGHU RAM The Court made the following COMMON ORDER: The petitioner was employed as Khalasi in Traffic Department of Visakhapatnam Port Trust, on 28.09.1988. He secured that post, by claiming the status of Scheduled Tribe. The probation of the petitioner in that post was declared on 16.10.1989 and thereafter, he was promoted to the post of Tally Coupling Porter, Grade-II and his services were regularized in that post vide proceedings, dated 01.01.1990. For the next higher post, namely Tally Clerk, the appointment is by promotion, after ascertaining the eligibility of the candidates in the interview. The petitioner was promoted to that post on 16.11.1991. The Port Trust entertained a doubt about the genuinity of the social status of the petitioner. Several proceedings ensued at various levels and the service of the petitioner, as Tally Clerk, could not be regularized for a long time. It was only in pursuance of a direction issued by this Court in W.P.No.21172 of 2001 that the service of the petitioner was regularized vide proceedings, dated 16.12.2006. The post superior to that of Tally Clerk, is Traffic Manager. Alleging that several Tally Clerks, who are juniors to the petitioner, were promoted to that post, the petitioner got issued a legal notice claiming necessary relief. In the meanwhile, the Director of Tribal Welfare addressed a letter, dated 19.01.2007, stating that representations were received by the Minister for Social Welfare and Tribal Welfare, Government of A.P., doubting the genuinity of the social status of the petitioner and that an enquiry is pending. Obviously on the basis of the said communication, the Port Trust did not take any steps to promote the petitioner. The petitioner filed W.P.No.4599 of 2007 assailing the communication, dated 19.01.2007. Thereafter, the Joint Collector and Chairman, District Level Scrutiny Committee, Visakhapatnam, (for short ‘the Committee’) constituted under the Andhra Pradesh (SC, ST & B.Cs) Regulation of Issue of Community Certificates Act, 1993 (for short ‘the Act’) issued a notice, dated 12.07.2007, to the petitioner proposing to conduct enquiry into his social status. W.P.No.15333 of 2007 is filed challenging the same. The petitioner filed W.P.No.26129 of 2007 seeking a direction to the Port Trust to promote him to the next higher post of Assistant Quay Foreman, in view of the fact that his services have been regularized in the feeder cadre. The petitioner contends that his father was appointed as Post Master as a Schedule Tribe candidate and that he retired from service. He submits that never any doubt was expressed about his social status and some envious employees in the Port Trust had initiated proceedings one after the other to stall his promotion. The Port Trust filed a counter-affidavit in W.P.No.26129 of 2007, stating inter alia that the case of the petitioner cannot be considered for promotion to the next higher post in view of the pendency of the proceedings under the Act. Heard Sri Sai Gangadhar Chamrty, the learned for the petitioner, Sri A.Krishnam Raju, the learned Standing Counsel for the Port Trust and the learned Government Pleader for Social Welfare. The petitioner did not face any problem either during the course of his studies or after he was employed as a Khalasi on 28.09.1998 or when he earned promotion to different posts up to Tally Clerk. It was only at a stage when the services of the petitioner in the post of Tally Clerk were to be regularized, that doubt was expressed about the genuinity of his social status. Almost a semblance of finality reached with the issuance of proceedings, dated 16.12.2006, by the Port Trust, regularizing the service of the petitioner by making a reference to the communication, dated 12.09.2006, said to have been received from the District Collector. However, the Director of Social Welfare addressed a letter and issued a notice to the petitioner, in the light of representations said to have been received by the Minister for Social Welfare. This was followed by a notice issued by the Joint Collector, who happens to be the ex-officio Chairman of the Committee. Obviously, in view of these developments, the Port Trust did not consider the case of the petitioner for promotion, thereby the three writ petitions came to be filed. A.P. State Legislature had enacted the Act, which prescribes the procedure to be followed in the matter of grant of certificates in favour of Scheduled Castes, Scheduled Tribes and Backward Classes candidates as well as cancellation thereof, after conducting enquiry. The Rules prescribed there under, supplement the procedure to be followed by the authorities concerned. The Act is exclusive. As of now, be it in the context of issuance of certificate or cancellation thereof, it is only the proceedings initiated under the Act and Rules that become relevant and conclusive. Section 5 of the Act confers power upon the District Collector to initiate steps whenever doubt is expressed as to the genuinity of any certificate issued to the categories referred to above. Rules 8 and 9 of the Andhra Pradesh (SC, ST & BCs) Regulation of Issue of Community Certificates Rules, 1997 prescribe a detailed procedure to be followed before any certificate is cancelled. Though the District Collector is the authority who can set the machinery in motion, ultimately, it is the Committee which is under obligation to conduct the enquiry and submit its report. The Committee is headed by the Joint Collector. So far as the Scheduled Tribes are concerned, in addition to the common procedure and steps stipulated under the Act and the Rules, the Commissioner, Tribal Welfare is conferred powers, to cause an enquiry by himself and set the machinery in motion. Even where he comes to a conclusion that the certificate held by an individual is fraudulent, he cannot take any steps by himself and ultimately he has to forward his report of findings to the Collector or the Government for necessary action in accordance with Section 5 of the Act. In the instant case, not only the Joint Collector, but also the Commissioner of Tribal Welfare have issued notices to the petitioner. In a way, it can be said that with the issuance of a notice by the Joint Collector, the proceedings initiated by the Commissioner of Tribal Welfare have become redundant. Once the matter is in seisen of the Joint Collector, the proceedings before the Commissioner of Tribal Welfare have to abate. It is true that on account of the long pendency of the proceedings, the petitioner is denied the benefit of promotion, particularly when his juniors have already been promoted to higher post. However, when the proceedings under a statute are pending against the petitioner and when his appointment itself is traceable to the social status claimed by him, this Court cannot compel the Port Trust to consider his case for promotion ignoring these developments. Instead, the authorities concerned can be required to expedite the procedure so that the controversy can be given a quietus. For the foregoing reasons, W.P.No.4599 of 2007 is closed as having become redundant. W.P.No.15333 of 2007 is disposed of directing the District Level Scrutiny Committee to conclude the proceedings initiated against the petitioner, within a period of six (6) months from the date of receipt of a copy of this order. W.P.No.26129 of 2007 is closed by directing that the case of the petitioner for promotion to the next higher post shall be considered depending upon the outcome of the enquiry that is undertaken by the Joint Collector. __________________ L.NARASIMHA REDDY,J Dt:30.04.2008. Note: L.R. Copy to be marked. kdl ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK}