Himachal Pradesh High Court
Giripar Anusuchit Jaati Adhikhar ... vs . State Of H.P. & Ors. on 1 November, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Jyotsna Rewal Dua
Giripar Anusuchit Jaati Adhikhar Sanrakshan Samiti Vs. State of H.P. & Ors.
.
CWP No.8301 of 2023 01.11.2023 Present: Mr. Colin Gonsalves, Senior Advocate with Mr. Rajendera Gulati and Mr. Suresh Singh Saini, Advocates, for the petitioner.
Mr. Balram Sharma, DSGI, for respondents no.1 to 6. Mr. Anup Rattan, Advocate General with Mr. Rakesh of Dhaulta & Mr. Pranay Pratap Singh, Additional Advocates General and Mr. Arsh Rattan & Mr. Sidharth Jalta, Deputy Advocates General, for respondents no.7 to 11.
rt Notice. Mr. Balram Sharma, learned Deputy Solicitor General of India and Mr. Anup Rattan, learned Advocate General, accepts service of notice on behalf of respondents no.1 to 6 and respondents no.7 to 11, respectively.
2. In this Writ petition, the petitioner has assailed Gazette Notification no.14 of 2023, dt. 04.08.2023, by which the Constitution (Scheduled Tribes) Order (Second Amendment) Act, 2023 was enacted by the Parliament including in the list of Scheduled Tribes mentioned in the Constitutional (Scheduled Tribes) Order, 1950 in part-V qua the State of Himachal Pradesh after entry 10, entry 11 'Hattee of Trans Giri area of Sirmour district'.
3. Sh. Colin Gonsalves, learned Senior Counsel appearing for the petitioner inter-alia contended as under:-
(i) The notification includes a group in the ST list of the Union of India on the basis of geographical area and not individual tribes. This cannot be done. People of a particular area consisting ::: Downloaded on - 02/11/2023 20:35:14 :::CIS of diverse and separate groups cannot be collectively notified as STs. This is confirmed by the Union of India's previous 3 .
rejections of applications to notify the Hattees of the Trans-Giri area of Himachal Pradesh in 1995, 2006 (page 125), and 2017 (page 118). This is also confirmed in the RTI reply dated 1.9.23 of where it is categorically stated, "According to the reports received from all Tehsil/Sub-Tehsil offices, you are informed that there is no rt mention related to Hattee caste and community in the revenue records of this district" (page 116).
(ii) The diverse groups that go to constitute the Hattees of the Trans-Giri area are (1) The Bhat Brahmins (2) The Kash-
Kannet Rajputs and (3) The SC community consisting of Badhoi, Chamar, Chanal, Dhaki/Toori, Dom, Koli and Lohar.
The Brahmins are already notified as OBC (page 132).
There is no material on record not even in the 2020 ethnographic report to show as to why the Brahmins who have been notified as an OBC caste are now suddenly changed to ST. This is totally illegal.
There is no material on record not even in 2020 ethnographic report to show as to why the abovementioned 6 castes which are notified as SC (Page 365-367) have suddenly in the impugned notification being shown as ST. This is totally illegal.
::: Downloaded on - 02/11/2023 20:35:14 :::CIS(iii) On the contrary, the Constitution (Scheduled Tribes) Order (Third Amendment) Bill 2022 specifically excluded the .
SCs from the proposed law seeking to include the Brahmins and Rajputs in the SC list. The Bill was passed by Lok Sabha on 16.12.2022 (Annexure A-1). Why the OBCs and the SCs are of included in the ST list is not explained or justified anywhere. That this miraculous shift has taken place is set out in the Cabinet note rt dt.23.9.22 hereto, but there is still no explanation or justification.
(iv) In the revenue records of the state two dominant communities are clearly shown as "Brahmin" and "Rajput" (Page 140 onwards). This is pursuant to the letter of the State Government dt.4.7.56 (Page 131) directing the revenue authorities to clearly identify the entries in the revenue records with the caste of the person. These entries were never challenged and always accepted by the dominant communities. Further in the section on the ethnographic report of 2020, the Brahmins and the Rajputs have been shown as the dominant community (Page 298, 299, 300, 302, 319, 325, 326, 348, 353, 357) and also dominant in terms of population comprising 60% of the population (Page 670).
(v) As stated in the report "Hatee" term is used for three social groups viz, Rajputs, Brahman and Scheduled Castes.
Rajputs and Brahmans cannot be treated as Scheduled Tribes. The remaining castes have already been notified as Scheduled Castes in the entire state of Himachal Pradesh. Therefore, they cannot have tribal traits like primitiveness, distinct culture, etc. ::: Downloaded on - 02/11/2023 20:35:14 :::CIS
(vi) The ethnography report titled "Ethnography of the 'Hatee' community of the Trans-Giri area, district Sirmour, .
Himachal Pradesh" is not rigorous or academic in its presentation.
It gives no references. It jumps to conclusions without revealing the basis of documents or studies on which the conclusions are of based and so it cannot be relied on.
(vii) The Brahmin and the Rajput community are culturally, rt socially and economically, educationally dominant as compared to the SC community and have nothing in common with the SC community.
(viii) In respect of geographical isolation which covers only two and a half pages, the references at the bottom of the page indicate that the books relied upon were very old publications.
There is no reference at all to the Report titled Statistical Abstract of Himachal Pradesh 2019-20 published by Economic and Statistics, Government of Himachal Pradesh (Pages 402 onwards) which shows the contrary not only that the Trans-Giri area of Sirmour district is well connected to the rest of the State, but also that this connection of roads and bridges has been made to facilitate modern forms of travel by vehicular traffic and not on bullock carts as the report is at pains to emphasize.
(ix) A perusal of the ethnographic report with respect of economic backwardness seeks to create a situation as if the people in the Trans-Giri region of Sirmour district are living in pre-
::: Downloaded on - 02/11/2023 20:35:14 :::CISindependence conditions. A test to determine whether such a report can be relied upon is to look at the books and references relied .
upon and one will immediately notice that these references are of some vintage. One will also notice that the latest document of the Department of Economics and Statistics, Government of Himachal of Pradesh titled Statistical Abstract of Himachal Pradesh 2019-20 which gives the latest information regarding the economic rt development district has been completely left out while making the report.
(x) The main conclusion of the abovementioned report shows that the District Sirmour within which the Trans-Giri area falls is a relative prosperous area with good agricultural development (Page 450 onwards), horticultural development (Page 455 onwards), good fisheries production (Page 464 onwards), good livestock and animal husbandry (Page 465 onwards), much industry and mining activity (Page 469), reasonably good tourism (Page 471), 100% electrification of villages (Page 474 and good transport and communications (Page 475), good education in terms of number of schools and colleges (Page 478 onwards), good health services (Page 492 onwards), good employment of labour (Page 506), a good social sector (Page 515) and the area is serviced well by the police stations so that the public do not have to resort to traditional systems such as referred to in the ethnography report as Khumbli Panchayat (Page 348).
::: Downloaded on - 02/11/2023 20:35:14 :::CIS(xi) The entire RGI comments are in the nature of storytelling without a single reference to a specific page of a .
specific document. There are no references mentioned in the comments at all. The references in the ethnographic report and the petitioner has stated that the references are very few and very old.
of No particular line or paragraph or page of the ethnographic report is relied on or quoted. A general observation is made and some rt ancient book is mentioned without quoting from a single line or paragraph or page. Such a non-rigorous approach is required to be condemned and discarded. When the SC held in a series of cases ending in M. Nagaraj vs. Union of India1 case that when the reservation is done, it must be made based on quantifiable data what this means is that there must be specific statistical data qua the tribe and the area. It cannot be some general observations which cannot be linked to specific statistical data. The Court in the Nagraj case noted:
"117. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency 1 (2006) 8 SCC 212 ::: Downloaded on - 02/11/2023 20:35:14 :::CIS of service as mandated under Article 335 of the Constitution."
.
(xii) The SC community will lose its 22 percent exclusive reservation in employment and education in the State of Himachal Pradesh. The SC community will also lose 15% of the national of reservation in employment and educational opportunities.
(xiii) In the absence of quantifiable data regarding the rt backwardness of the Brahmins and Rajputs, no inclusion in the ST list is permissible.
Learned Senior Counsel for the petitioner also contended that an ethnic group which is already declared to be a Scheduled Caste under the Constitution (Scheduled Castes) Order, 1950 cannot be designated as a Scheduled Tribe since the lists of Scheduled Castes and Scheduled Tribes are mutually exclusive. He also contended that Brahmins of the area are already designated as OBCs and without deleting the said community from the said list, they cannot be included in the list of Scheduled Tribes and it is constitutionally impermissible.
He further submits that the National Commission for Scheduled Tribes and the Registrar General, Social Studies Division have both simply rubberstamped the recommendation of the State of Himachal Pradesh for grant of Scheduled Tribe status to the Hattees of the Trans Giri area of District Sirmour without proper application of mind and without independently considering the said aspect.
::: Downloaded on - 02/11/2023 20:35:14 :::CISThe above contentions of the counsel for the petitioner merit consideration by this Court.
.
Accordingly, admit the Writ petition.
List on 18.12.2023.
Reply shall be filed by all the respondents by the said of date.
List CMP No.15611 of 2023 for consideration on the date fixed.
rt
(M.S. Ramachandra Rao)
Chief Justice
(Jyotsna Rewal Dua)
November 01, 2023 Judge
Mukesh
::: Downloaded on - 02/11/2023 20:35:14 :::CIS