ORDER
V.V.S. Rao, J.
1. The writ petition and the writ appeal are interrelated and therefore it is convenient to dispose of them by this common order. The appellant in the writ appeal and the petitioner in the writ petition is the same. The parties will be referred to as per their status in the writ petition.
2. The facts of the case are as follows. The petitioner claims to belong to Scheduled Tribe (ST) community. He secured admission during the academic year 1992-93 in first year MBBS as per the Rules and Regulations of the University of Health Sciences, the fourth respondent. At the time of admission the authorities asked the petitioner to produce community certificate from the first respondent and his admission was kept in abeyance. Therefore the petitioner filed a writ petition before this Court. The writ petition being WP No. 9768 of 1993 was allowed by order dated 14-10-1993 directing the respondents to permit petitioner to attend the classes. This Court further directed the first respondent to complete the enquiry within one month from the date of receipt of the order. In obedience thereto, the petitionerwas permitted to attend the classes. However, he was denied scholarship and other facilities and he was not allotted the seat with class-fellows. Therefore, he filed another, writ petition being WP No. 15656 of 1994 praying for a writ of mandamus directing the respondents to treat him on par with the regular students and also declare the proceedings of the first respondent in ordering successive enquiries with regard to status of the petitioner as null and void. The said writ petition was dismissed by the learned single Judge on 9-4-2001. Feeling aggrieved by the same Writ Appeal No. 1025 of 2001 is filed.
3. It appears that while WP No. 15657 of 1994 was pending, in the counter-affidavit filed there it was revealed that the first respondent by proceedings in Rc. No. 2846/ 93/TRI/VC-1 passed in October, 1994 (hereinafter called 'the impugned proceedings') cancelled the community certificate of the petitioner. It is also stated that the same was served on the petitioner on 6-4-2001. Challenging the said proceedings of cancellation of the community certificate, the petitioner filed WP No. 12468 of 2001 praying for a writ of mandamus declaring the said proceedings as arbitrary, unjust, null and void and for a consequential direction to respondents to admit the petitioner to prosecute MBBS course and House Surgency on par with regular candidates.
4. In the counter affidavit filed in WP No. 15657 of 1994 on behalf of the first respondent it is contended that father of the petitioner Sri J.N. Sita Rama Raju is a revenue employee and that in his service register his caste is recorded as 'Oriya Kshtriya'. However, he secured another certificate showing 'Kondadora' Caste on 26-8-1979. On the strength of the said certificate the entries in the service register were also changed in 1985. Oriya Kshtriya and Kondadora castes are not synonymousto each other and fraudulently changes were made in the service register of the petitioner's father. In G.O. Ms. No. 1793, dated 23-9-1970 which notified STs, Kondadora is not a notified in the list. Tahsildar of Salur issued the community certificate even without verifying the same duly violating various instructions issued by the Government. Oriya Kshtriya is not a ST in Andhra Pradesh. The certificate dated 16-4-1990 issued to the petitioner is therefore invalid. During the course of admission to MBBS course the University of Health Sciences was requested not to admit the petitioner under reserved quota until enquiry report is received by them. The petitioner's claim is fraudulent claim.
5. No counter-affidavit is filed in WP No. 12468 of 2001. However, the learned Government Pleader for Social Welfare has produced the records relating to impugned order and made his submissions.
6. The learned Counsel for the petitioner Sri Rajasekhar submits that as per the provisions of the Andhra Pradesh (SC, ST and DCs) Regulation of Issue of Community Certificates Act, 1993 (hereinafter called 'the Act') and the Andhra Pradesh (SC, ST and BCs) Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (hereinafter called 'the Rules') it is only the District Collector who is competent to cancel alleged false community certificate after following elaborate enquiry and the Commissioner of Tribal Welfare cannot pass cancellation order. He further submits that the impugned order is void as the same was passed without jurisdiction and competency. The Act came into force with effect from 16-5-1997. As the order is communicated to the petitioner on 6-4-2001 the same must be held to have been communicated by the authority who inherently lacks jurisdiction. Yet another submission of the learned Counsel for the petitioner is that when theproceedings were drafted in October, 1994, Smt. Chayarathan, IAS, was the Commissioner but, when it was communicated to the petitioner the same was signed by another officer.
7. The learned Government Pleader submits that though the order was passed in October, 1994 the same could not be communicated for various reasons and when the WP No. 15657 of 1994 was filed along with the counter the same was filed and communicated to the petitioner on 6-4-2001. The Commissioner was competent authority for conducting enquiry into fraudulent claims and cancel community certificates issued to STs and as the enquiry was completed and order was also drafted prior to 16-5-1997 the order must be held to be valid and legal. The learned Counsel placed reliance on Rule 20 of the Rules and says that all acts of cancellation as per Government Orders and executive instructions prior to coming into force of the Act and rules are valid. The learned Government Pleader submits that elaborate enquiry was conducted after giving proper notice to the petitioner.
8. Before we take up the main issue for consideration, we may consider the submission of the learned Counsel for the petitioner that the matter was considered and heard by one officer and the matter was disposed of by another officer. The file relating to the proceedings has been placed before us. The same discloses that elaborate order was passed by Smt. Chayarathan, the then Commissioner, after considering the entire evidence placed before her. She also affixed her signature to the proceedings. The order was not communicated to the petitioner and admittedly the same was communicated on 6-4-2001. Therefore, we must reject the contention that the proceedings were signed by another officer which is factually not correct.
9. The next question that arises for consideration is whether the impugned order of cancellation of community certificate passed in October 1994 and served on the petitioner on 6-4-2001 suffers from infirmity.
10. It is not denied that before coming into force of the Act and the Rules the subject of issue and cancellation of community certificates for SC, ST and BCs was governed by various executive instructions issued by the Government of India from time to time. Under those Regulations in the matter of cancellation of community certificates for STs the Commissioner for Tribal Welfare was competent authority. Further, admittedly in WP No. 9768 of 1993 when the petitioner approached this Court for a direction to admit into MBBS course, this Court by order dated 4-10-1993 directed the Commissioner to conduct enquiry into the validity of the community certificate produced by the petitioner. Therefore, insofar as conduct of enquiry before coming into force of the Act on 16-5-1997, it cannot be held to be without jurisdiction. However, the difficulty arises in this case is as to whether an order which is not communicated prior to 16-5-1997 would have any force at all. Before dealing with this question, it is proper to consider the effect of the Act and the rules.
11. So as to curb effectively the evil practice of producing false community certificates by deriving a strict procedure for the issue of such certificates and prescribing deterrent punishment to those who produce false community certificates and also to streamline the procedure for issue of community certificates to SC, ST and BCs the State of Andhra Pradesh enacted Act 16 of 1993. The Act regulates the issue of community certificates to persons belonging to SC, ST and BCs. In exercise of the power under sub-section (1) of Section 20of the Act, the Governor has made rules in G.O. Ms. No. 58, Social Welfare dated 12-8-1997. The competent authority shall issue community certificate on report of application. Section 4 of the Act provides for issue of certificates by the competent authority. Rule 5 of the Rules provides for elaborate enquiry/verification before an integrated community certificate is issued under Section 4 of the Act. When any authority has a reason to believe either suo motu or on a written complaint that any community certificate was obtained fraudulently, it is only the District Collector who can initiate enquiry under the Act. Such enquiry shall be conducted in accordance with Rules 8 and 9 of the Rules. Section 21 of the Act provides that unless a community certificate is cancelled in accordance with the provisions of the Act, the community certificate issued by any authority shall be valid and the same shall be deemed to have been issued under the provisions of the Act. Rule 19 of the Rules is to the effect that if there is likely to be delayed in finalising the enquiry either for issue of integrated community certificate or for cancellation of such certificate duly following the procedure contemplated under Section 5 read with Rules 8 and 9, the competent authority may inform the Principal of the educational institution to admit the candidate (in the case of educational institutions) on the basis of the declaration given by the candidate and that such admission shall be provisional for a period of three months from the date of communication from the competent authority. The conspectus of the provisions referred to herein makes it very clear that a certificate issued by a competent authority under the provisions of Section 4 of the Act has unimpeachable finality till the same is cancelled only by the District Collector. The Commissioner of Tribal Welfare has no role to play either at the stage of issue of community certificate or cancellation of the community certificate.
12. In view of legal position, the submission made by the learned Government Pleader for Social Welfare that so as to prevent the misuse of the benefits intended for the candidates belonging to SC, ST and BCs a high authority like the Commissioner of Tribal Welfare should be presumed to be vested with such inherent power to stall the benefit of integrated certificate, though looks to be attractive, cannot be accepted. Nevertheless, we hasten to add that in view of Section 5 of the Act that the Collector can initiate action for cancellation either suo motu or on application or on a written complaint, it is always open to any other authority, including the Commissioner of Tribal Welfare, to make a written complaint to the District Collector to enquire into the genuineness of the integrated community certificate produced by a person seeking admission or appointment. On such complaint being made, the District Collector is bound to conduct enquiry having regard to the fact that the written complaint is made by a no less person than the Head of the Department of Tribal Welfare.
13. Therefore, we must hold that after coming into force of the Act on 16-5-1997 the Commissioner of Tribal Welfare is not competent authority to enquire into the correctness of community certificates nor cancel the same. As per Section 5 of the Act, it is only the District Collector who is competent to do so. But, as per proviso to Section 5 of the Act where enquiry into the genuineness of the community certificate issued prior to commencement of the Act has commenced and is pending on the date of commencement of the Act, the record thereof shall be transferred by the concerned authority to the District Collector, who shall conduct an enquiry and conclude the same as per the provisions of the Act. In the case on hand, however, it is not done. The office of the Commissioner has communicated the order passed inOctober, 1994 to the petitioner on 6-4-2001 instead of communicating the record to the District Collector. The learned Government Pleader for Social Welfare submits that the same is not vitiated.
14. In D.V.N. Satyanarayana v. Collector, Rangareddy District, : 1999(3)ALD712 and P. Kranti v. Government of Andhra Pradesh, : 2000(2)ALD622 , this Court has held that the Commissioner is not competent to cancel the community certificates. The order communicated on 6-4-2001 must be held to have been passed and communicated only after coming into force of the Act and therefore the same is illegal as the same without jurisdiction.
15. The order which is not communicated to the aggrieved party or to the person concerned in law is not an 'order' at all. This principle of law is well settled. In Bachhittar Singh v. State of Punjab, : AIR1963SC395 . The Supreme Court considered this aspect of the law in Bachhittar Singh's case and it was held:
The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution therefore requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide that the action must be taken by the authority concerned in the name of Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the Head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the Stateuntil the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned.
16. The learned single Judge of this Court in APCCAD Bank v. Nagaraju, 1982 (2) APLJ 450, has considered this questionelaborately and held as under:
A tentative order not communicated does not create any rights in parties. An adverse order passed by the authority must be communicated to the party. Communication does not mean receipt of the order by the party concerned but dispatching the order or publishing it otherwise. A tentative order if communicated may create rights in parties. A final order passed by the competent authority cannot be defeated by mere non-communication unless it is rescinded validly. Even assuming that communication of orders of appointment is necessary an order publishing the selection constitutes sufficient communication and creates rights in the candidates so selected.
17. In K. Srinvasulu Setty v. Government of A.P., : 1991(3)ALT208 , this Court again considered similar issue and observed as under.
It, therefore, follows that only when a resolution of the Managing Committee of the TTD is communicated to the person affected by it, it binds both the TTD and the person so affected andcreates mutual rights and obligations; an uncommunicated resolution contained in the minutes book of the Management Committee is a matter of internal management and does not create any legal right in a third party even though it relates to that party. As the said Resolution was not communicated to the 3rd respondent, he acquires no legal right under it which can be enforced by the High Court by issuing a writ of mandamus. Therefore, no writ of mandamus can be issued to implement the resolution. However, it is made clear that this judgment does not preclude respondents 1 and 2 from implementing the said Resolution and appointing the 3rd respondent as Director, Annamacharya Project.
18. Therefore, the order not communicated to the petitioner before coming into force of the Act cannot be said to be an order passed under the Act. In any event, the same is invalid being one without jurisdiction. We therefore declare the impugned order as null and void.
19. With regard to the question of relief in this case insofar as the first writ petition, out of which writ appeal arises, the writ petition was dismissed presumably because in the counter-affidavit filed therein, the Government contended that the community certificate is cancelled. Insofar as the second writ petition is concerned, the petitioner challenges the impugned order on the ground of jurisdiction. After having held that the order passed by the Commissioner is without jurisdiction we must take notice the provisions of law which govern such situation. Section 21 of the Act as well as Rule 19 of the Rules are to the following effect:
Section 21. Transitional Provisions :--A community certificate issued by any authority competent to issue the same under the relevant rules or orders beforethe commencement of this Act shall unless it is cancelled under the provisions of this Act, be valid and shall be deemed to have been issued under the provisions of this Act.
Rule 19. Provisional admission/ appointment :--If the last date for admission to an educational institution/ appointment to an office/post is getting expired, and there is delay in finalizing the enquiry and issuing of Community, Nativity and Date of Birth Certificate by the competent authority, then the competent authority may inform the Principal of that Educational Institution/ appointing authority/employer or such other authority, competent in this behalf, to admit/appoint the candidate, on the basis of the declaration given by the candidate/parent/guardian before the competent authority, while applying in Form I/II as per Rule 5, for the issuance of the Community, Nativity and Date of Birth Certificate. Such admission or appointment shall only be provisional and valid for three months from the date of the communication by the competent authority to the Principal/employer/ appointing authority as the case may be, and shall cease to be valid after the issuance of the community, nativity and date of birth certificate by the competent authority, based on the conclusion of the enquiry.
20. In view of these provisions of law even when there is cloud on the community certificate produced by a candidate for admission into an educational institution pending enquiry under Section 5 of the Act by the District Collector or Scrutiny Committee the candidate is entitled to continue the course for a period of three months. Therefore we direct the competent authority, the District Collector, Vizianagaram to conduct and complete enquiry within a period of eight weeks from today and the first respondent Commissioner,Tribal Welfare is directed to communicate the entire record to the District Collector who shall conduct the enquiry under Section 5 of the Act immediately within one week. The District Collector shall conduct enquiry in accordance with law after giving adequate opportunity to the petitioner including opportunity of hearing. During the pendency of enquiry, the petitioner may be permitted to continue the course. In this regard, we must notice the contention of the learned Standing Counsel that there is change in syllabus and pattern of MBBS course and the pattern and structure of the course 'with which the petitioner started his first year MBBS is no more available in the University. Therefore, option shall be given to the candidate to shift to the new course and/ or new pattern so that the petitioner could prosecute the studies till the enquiry by the District Collector into the validity of the community certificate is finalised.
21. We dispose of the writ appeal and the writ petition accordingly without any order as to costs.