WP/17728/2003 of T.Ch.Venkateswarlu Vs The Zonal Manager, on 30 December 2013

Order:

The petitioner seeks for a Writ of certiorari to cancelproceedings dated 06-8-2003 by the 2[nd] respondentordering the terminating of the petitioner from service as illegal and for consequential reliefs.

2. The petitioner belonged to Gundumeda Village inGuntur District. He belongs to Vaddera Community. He studied up to X Class. The school record and othercertificates issued by the competent authorities showedthe petitioner as belonging to the Scheduled Tribes beingbelonging to Vaddera Community. On 14-6-1976, theDe p u ty Tahsildar, Mangalagiri issued a CommunityCertificate that the petitioner belonged to the ScheduledTribes, being belonging to Vaddera Community. SimilarCertificate was issued by the Tahsildar, Guntur on 25-02-1977.

3. The petitioner joined the Food Corporation ofIndia (the Corporation, for short) on 08-7-1976 under thereserved category as a Scheduled Tribe candidate. He was subsequently promoted as Assistant Grade-III(Depot) in 1983. It would appear that the promotion asAssistant Grade-III (Depot) was in the capacity as a reserved candidate belonging to the Scheduled Tribes. The petitioner was further promoted on 27-12-1993 asAssistant Grade-II (Depot). At the time of his appointmentas Assistant Grade-II (Depot), a condition was imposedthat the petitioner should produce the latest CasteCertificate.

4. On 24-02-1994, the petitioner submitted a representation to the Corporation that the RevenueOfficials refused to issue latest Caste Certificate claimingthat from 1970 onwards, his community was recognizedas Backward Classes Group-A Community videG.O.Ms.No.1793, Education, dated 29-9-1970. The petitioner, however, was promoted as AssistantGrade-I (Depot) on 23-7-1997. As the petitioner himselfhas submitted that Vaddera Community was a BC-ACommunity and not a Scheduled Tribe in the State ofAndhra Pradesh, the promotion of the petitioner asAssistant Grade-I (Depot) had never been given effect to.

5. The Corporation passed orders on 07-02-2000 thatthe petitioner was not entitled to promotion to AssistantGrade-II (Depot) and Assistant Grade-I (Depot). He wasconsequently reverted as Assistant Grade-III (Depot) as aGeneral candidate with a direction that his seniority shouldbe fixed in the cadre of Assistant Grade-III (Depot) in theSouth Zone. The seniority of the petitioner wasaccordingly fixed at serial No.3523 through proceedingsdated 13-3-2000.

6. However, on 30-5-2002, a Show Cause Noticewas issued to the petitioner as to why his services shallnot be terminated on the ground that he obtainedselection as a reserved category candidate on the basisof invalid Community Certificate and that once thepetitioner did not belong to the Scheduled Tribes Category, he was not entitled for selection. The petitionergave a detailed representation on 30-6-2002.

Not satisfied with the explanation, the impugned ordersdated 06-8-2003 were passed by the 2[nd] respondentterminating the petitioner from service.

7. The 1[st] objection raised by Sri B.Krishna Mohan,learned Standing Counsel for the respondents-Corporation is that there is provision to file a departmental appeal under the Staff Regulations andthat consequently this writ petition is not maintainable.

8. It may be noticed that the petitioner filedW.P.M.P.No.22067 of 2003 along with the writ petitionseeking for suspension of the termination orders.

The termination orders were suspended and the petitionercontinued to be in service till 31-7-2013 on which date heattained superannuation. When the question ofalternative remedy should have been raised andconsidered at the time of the miscellaneous petition andhas not been done, it is not open for the Corporation nowto raise a contention that the petitioner ought to haveinvoked the alternative remedy.

9. I may also point out that when the Revised PayScales were not applied to the petitioner who wascontinuing in service on the basis of interim orders, thepetitioner preferred W.P.M.P.No.17204 of 2010.

That petition was allowed on 07-7-2010 directing therespondents-Corporation to extend Revised Pay Scalesto the petitioner. Even at that time, this question ofalternative remedy has not been considered. At thislength of time, the Corporation is not entitled to raise thequestion of alternative remedy as noted by the Supreme Court in Tilokchand Motichand v. H.B.Munshi[[1]].

10. It is next contended by the learned StandingCounsel for the Corporation that the very appointment ofthe petitioner was in the reserved category as a Scheduled Tribe candidate. There is no dispute that thepetitioner was selected initially as a Scheduled Tribecandidate. However, it cannot be claimed by therespondents-Corporation that the petitioner deliberatelyproduced an invalid Community Certificate claimingSchedule Tribe category. There is no doubt that theCertificates dated 14-6-1976 issued by the DeputyTahsildar, Mangalagiri and 25-02-1977 issued by theTahsildar, Guntur are true. It also is true thatG.O.Ms.No.1793, Education, dated 29-9-1970 placedVaddera Community in Backward Classes Group-Acategory in the State of Andhra Pradesh. However, eitherVaddera Community was in the category of ScheduledTribes by the date the petitioner started studying or theRevenue Officials themselves were not aware thatVaddera Community was not a Scheduled Tribe Community, for the Certificates dated 14-6-1976 and 25-02-1977 would not have been issued by the DeputyTahsildar, Mangalagiri and the Tahsildar, Guntur, if Vaddera Community was not a Scheduled Tribe. There appears to be some confusion for the RevenueOfficials whether Vaddera Community belonged toScheduled Tribes or Backward Classes Group-A.

11. The learned Standing Counsel for therespondents-Corporation contended that whether thepetitioner was aware that he did not belong to theScheduled Tribes or otherwise, the Certificate issued bythe Deputy Tahsildar, Mangalagiri and the Tahsildar,Guntur are invalid and that the petitioner consequently isliable to be terminated from service.

12. Sri P.Gangaiah Naidu, learned Senior Counselrepresenting the petitioner placed reliance upon Section21 of the Andhra Pradesh (Scheduled Castes, ScheduledTribes and Backward Classes) Regulation of Issue ofCommunity Certificates Act, 1993 (1993 Act, for short),which contemplates that a Community Certificate issuedby any authority competent to issue the same shall bevalid and shall be deemed to have been issued under theprovisions of 1993 Act unless the same is cancelledunder the provisions of 1993 Act. Admittedly, theCertificates obtained by the petitioner had never beencancelled. The learned Standing Counsel for the Corporation contended that Section 21 of 1993 Actapplies in the event the Certificates were validly issued. He claimed that the Certificates obtained by the petitionerare ex facie invalid Certificates and that there is no needfor the competent authority to cancel the Certificates. I amnot able to agree with this contention of the learnedStanding Counsel for the Corporation. Section 21 of 1993Act in unambiguous words adumbrates that CasteCertificate obtained stands valid unless cancelled. Wheretwo Community Certificates obtained by the petitionerhave not been cancelled by the competent authority, theCertificates hold good so far as the employment of thepetitioner is concerned.

13. The learned Senior Counsel for the petitioner alsopointed out that the respondents-Corporation had inflictedpunishment upon the petitioner by reverting him asAssistant Grade-III (Depot) on the ground that theCommunity Certificate produced by the petitioner wasinvalid and that the respondents-Corporation cannotimpose further penalty of terminating the services of thepetitioner.

14. The learned Standing Counsel for theCorporation contended that the petitioner has submittedhimself to the reversion orders dated 07-02-2000 withoutprotesting and that the petitioner thus has accepted thatthe Community Certificate was invalid. His claim is that once the petitioner has directly or indirectly agreed thatthe Community Certificate was not correct, he shall betreated as a General candidate and further action is liableto be initiated against him.

15. Where the respondents-Corporation ought tohave taken a composite action against the petitioner andhave not chosen to do so, I do not consider that it wouldbe appropriate for the respondents-Corporation to takepiecemeal action, revering the petitioner through one stepand terminating the petitioner through another step. Oncesteps had been taken by the respondents-Corporation onthe basis of invalid Community Certificate and passedorders dated 07-02-2000 and confirmed the same throughfixation in the seniority list by proceedings dated 13-3-2000, the respondents-Corporation are estopped fromtaking further action against the petitioner. Above all, theCommunity Certificate continued to hold sway as thesame had never been cancelled in accordance withSection 21 of 1993 Act together with other provisions of1993 Act. Further, by virtue of the interim orders, thepetitioner was continued to be in service and has retiredfrom service on 31-7-2013 on attaining superannuation.

16. I therefore consider that the order of termination ofthe petitioner through the impugned order is illegal and cannot be sustained. The impugned order dated

06-8-2003 passed by the 2[nd] respondent consequently isset aside. The petitioner shall be entitled to all retirementbenefits to which he is otherwise entitled to. The writpetition is allowed accordingly.

The miscellaneous petitions pending, if any, shall standclosed. No costs.

_____________________

Dr. K.G.SHANKAR, J.

30[th] December, 2013.Ak

-Note:L.R. Copy to be marked.(B/o)Ak

[1]AIR 1970 SC 898

30[th] December, 2013.(Ak)