Kammara Upendrachari vs The State Of Andrha Pradesh
2022 Latest Caselaw 978 AP

         THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                  WRIT PETITION No.8845 of 2021

JUDGMENT:-

1.    Heard Sri Subba Rao Korrapati, learned counsel for the

petitioner and Sri Amritha Raju, learned Assistant Government

Pleader for Services-II.

2.    This petition has been filed for the following relief:

         "For the reasons stated in the accompanying affidavit, it is
     hereby prayed that this Hon'ble Court may be pleased to issue
     an appropriate Writ, Order or Direction more particularly in
     the nature of Writ of Mandamus declaring the action of 2nd
     Respondent in not allowing the petitioner to discharge his

duties as Senior Assistant in the office of the 3rd Respondent or in any office within the jurisdiction of the 2nd Respondent and not paying the salaries to the petitioner w.e.f., 13-08- 2019, though the proceedings R.Dis.Rc.A5/740/2009, dated 13-08-2019 of the 2nd Respondent was setaside by this Hon'ble Court on 29-01-2020 in W.P12367 &15974/2019 and the Proceedings Rc.C6.531/M/2007 dated 09-04-2020 of the 2nd Respondent was stayed by the 1st Respondent vide Memo No.11021/127/CV.2/2018 dated 1-12-2020, as arbitrary, illegal, in violation of Article 14, 16 and 21 of the Constitution of India, against rule of law and consequently direct the 2nd Respondent to allow the petitioner to discharge his functions/duties as Senior Assistant till attaining the age of superannuation, and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."

3. The petitioner was appointed on the post of Junior Assistant

in the Revenue Department and joined on 23.06.1984. Thereafter

he was promoted as Senior Assistant. During continuance in

service, on some complaint, the petitioner‟s Caste Certificate

issued by the Tahsildar, Nandyal in the year 1980, was cancelled

by the 2nd respondent i.e., the District Collector, Kurnool vide

proceedings Rc.No.C6/531/M/2007, dated 28.03.2009 against

which the appeal filed by the petitioner was also dismissed by the

1st respondent/the State on 20.09.2018. Later on, consequent

upon the above orders, the petitioner was dismissed from service

by order, dated 13.08.2019 by the 2nd respondent under Section

11(1) of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and

Backward Classes) Regulation of Issue of Community Certificates

Act, 1993 (in short „The Act 1993‟) and Rule 9(x) of the Andhra

Pradesh Civil Services (CCA) Rules.

4. Challenging the order dated 13.08.2019, the petitioner filed

W.P.No.12367 of 2019 and challenging the order, dated

20.09.2018, he filed W.P.No.15974 of 2019. This Court by

common judgment, dated 29.01.2020, allowed both the Writ

Petitions. The orders, dated 13.08.2019 and 20.09.2018 were set

aside and the District Collector, the 2nd respondent in both the

Writ Petitions was directed to issue a notice to the petitioner in

terms of Section 5 of the Act, 1993 and thereafter to take a

decision on the report of the District Level Scrutiny Committee.

The operative portion of the order, dated 29.01.2020 reads as

under:-

"Hence, the order dated 13.08.2019 by which the collector cancelled the Caste Certificates of the petitioners and the subsequent order dated 20.09.2018 are set aside and the 2nd respondent in both the writ petitions namely, the District Collector is directed to issue a notice to the petitioners in terms of section 5 of the Act and thereafter take a decision on the report of the District Level Scrutiny Committee. It is this decision of the District Collector that should be published in the District gazette.

This entire exercise of giving a notice to the petitioners along with the report of the District Level Scrutiny Committee and deciding on the validity of the Caste Certificate after receiving the representation of the petitioners should be completed within a period of two months from the date of

receipt of a copy of this order. The petitioners are also directed to immediately file their representation after receipt of the notice and not to stall the proceedings or to seek time on any flimsy grounds. Requests for time should be dealt with strictly.

With these observations, both the writ petitions are allowed. There shall be no order as to costs."

5. Learned counsel for the petitioner submits that in the order,

dated 29.01.2020 reproduced above, the mentioned order dated

13.08.2019 is the order of dismissal of the petitioner from service

and not the order of cancellation of petitioner‟s Caste Certificate.

6. Thereafter, the petitioner‟s caste certificate was cancelled

again by order, dated 09.04.2020 passed by the District Collector

against which the petitioner filed appeal before the 1st respondent

on 25.07.2020, pending before the said authority, in which the

operation of the order, dated 09.04.2020 of the District Collector

was stayed on 01.12.2020.

7. The learned counsel for the petitioner submits that inspite of

the order, dated 29.01.2020, aforesaid when the petitioner was not

reinstated in service, he filed W.P.No.8845 of 2021, in which this

Court vide interim order, dated 27.04.2021, directed the 2nd

respondent to allow the petitioner to discharge the duties as Senior

Assistant and pay the salaries due to him every month, and with

regard to the payment of salaries with effect from 13.08.2019, it

was provided that the same will be decided after the counter-

affidavit is filed. Pursuant to the order, dated 27.04.2021 the

order for petitioner‟s reinstatement in service was passed on

14.06.2021 and the petitioner joined on 20.06.2021 and is getting

salary from the date of joining.

8. Learned counsel for the petitioner submits that in view of the

dismissal order having been set aside, the respondent No.3 was

bound to reinstate the petitioner in service immediately and for the

delay on their part in not timely reinstating the petitioner, the

petitioner cannot be made to suffer by non-payment of salary for

the period due, and in particular, when any fresh order against the

petitioner with respect to the petitioner‟s discontinuance from

service has not been passed and the petitioner continued in service

upto the date of his retirement on 30.09.2021 and merely because

of pendency of the appeal against the order of the District Collector

in which also the order dated 09.04.2020 of the District Collector

has been stayed, the petitioner‟s arrears of salary for the period

claimed cannot be withheld.

9. Sri Amritha Raju, learned Assistant Government Pleader for

Services-II, submits that the appeal against the order of

cancellation of Caste Certificate, dated 09.04.2020 is still pending

before the Government/respondent No.1 and as such the

petitioner is not entitled for payment of any salary for the period

with effect from 13.08.2019 upto 19.06.2021. He submits that by

order, dated 09.04.2020, the petitioner‟s Caste Certificate was

cancelled and the same was also published in the District Gazette.

He has further submitted that in his representation, the petitioner

has stated that if there was any mistake in obtaining the Caste

Certificate of "KAMMARA" - Scheduled Tribe, it was unintentional

and unconscious mistake, and he may be permitted to continue in

service for the little left over period as "KAMMARA" - BC-B

candidate and in view thereof the petitioner is not entitled for

payment of salary.

10. In reply to the aforesaid, learned counsel for the petitioner

submits that the "KAMMARA" Community is included in

„Scheduled Tribe‟ in the State of Andhra Pradesh throughout the

State without any area restriction, as per the Constitution

(Scheduled Tribes order 1950) as amended upto date. With the

similar nomenclature "KAMMARA" or "KAMMARI", is a caste

throughout the State of Andhra Pradesh without any area

restriction as Backward Class. He submits that it was for the

authorities to have correctly determined for issuance of Caste

Certirficate, if the petitioner‟s caste "KAMMARA" falls in

"KAMMARA - ST" or "KAMMARA - BC-B" as there is no dispute

that the petitioner by caste is "KAMMARA" and it was only in that

context that the petitioner stated in the representation what is

being emphasized by the learned Government Pleader.

11. I have considered the submissions advanced and perused

the material on record.

12. From the aforesaid, what is undisputed is that the petitioner

entered in service on 23.06.1984 and has retired on 30.09.2021.

The order of cancellation of Caste Certificate was quashed by this

Court on 29.01.2020 and the order of dismissal from service, dated

13.08.2019 was also quashed. There is no order of discontinuance

of the petitioner‟s services, since after the order of dismissal was

quashed by this Court. The petitioner was reinstated vide order

dated 14.06.2021 and he joined on 20.06.2021 and retired on

30.09.2021. The petitioner as such continued in service and has

also been paid salary for the entire period, except the period with

effect from 13.08.2019 upto 19.06.2021. Although, the Caste

Certificate was again cancelled on 09.04.2020 but in appeal there

is stay which appeal is pending for decision, and even any fresh

adverse order against petitioner‟s services was not passed under

the Act 1993, till before stay of order dated 09.04.2020 in appeal

nor thereafter. In view of these facts, this Court does not find any

justification on the part of the respondents in not making payment

of salary of the period claimed by the petitioner. Pendency of the

appeal against the order, dated 09.04.2020 in which the order,

dated 09.04.2020 has been stayed cannot be a ground to deny

payment of salary to the petitioner for the period in question.

13. So far as the contentions relating to the merit of the Caste

Certificate are concerned, i.e. whether the petitioner belongs to

"KAMMARA" - Scheduled Tribe or "KAMMARA" - Backward Class,

or the with respect to the petitioner‟s contention in his

representation, since the matter is pending before the appellate

authority, this Court is not entering into that controversy and the

same is left to be decided by the appellate authority in accordance

with law.

14. For the aforesaid reasons, non-payment of salary to the

petitioner for the period in question is illegal, arbitrary and without

any justification. It is settled in law that any arbitrary action on

the part of the State or State instrumentality is negation of rule of

law and violates the fundamental right to equality enshrined under

Article 14 of the Constitution of India.

15. Accordingly, the respondents are directed to make payment

of arrears of salary to the petitioner, for the period in question with

effect from 13.08.2019 upto 19.06.2021 within a period of six (06)

weeks from the date of production of copy of this order before the

respondents.

16. It is clarified that this Court has not observed anything on

the merits of the case of either party with respect to the Caste

Certificate of the petitioner.

17. It is further clarified that consequent upon the order to be

passed in the pending appeal, it would be open for the respondents

to proceed in accordance with law under the Act 1993 and the

relevant rules.

18. The Writ Petition is allowed with the aforesaid observations

and directions.

19. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 23.02.2022 SCS

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THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.8845 of 2021

Date: 23.02.2022

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