Gauhati High Court
Dribbleena Sarania vs The State Of Assam And 5 Ors on 28 September, 2023
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
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GAHC010158732023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4084/2023
DRIBBLEENA SARANIA
D/O SRI KHARGESWAR SARANIA, VILL- BHAKATPARA, P.O.-TAMULPUR,
P.S.-TAMULPUR, DIST- BAKSA (BTC), ASSAM, PIN-781367
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM, DEPARTMENT OF TRIBAL AFFAIRS (PLAINS), ASSAM
SECRETARIAT, DISPUR, GUWAHATI-6
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-6
3:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
CHAIRMAN SELECTION BOARD
SIXMILE
KHANAPARA
GUWAHATI-22
4:THE DEPUTY COMMISSIONER
BAKSA DISTRICT
MUSALPUR
DIST-BAKSA (BTC)
ASSAM
PIN-781372
5:THE SUB-DIVISIONAL OFFICER (C)
TAMULPUR SUB-DIVISION
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P.O. AND P.S.-TAMULPUR
DIST- BAKSA (BTC)
ASSAM
PIN-781367
6:TAMULPUR DISTRICT TRIBAL SANGHA
REPRESENTED BY THE PRESIDENT
TAMULPUR TOWN
P.O.- P.S.- TAMULPUR
DIST-BAKSA (BTC)
ASSAM
PIN-78136
Advocate for the Petitioner : MR. M SARANIA
Advocate for the Respondent : SC, WPT AND BC
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 28.09.2023 Heard Mr. M Sarania, learned counsel for the petitioner. Also heard Mr. R Dhar, learned counsel for the authorities under the Tribal Affairs (Plains) Department of Government of Assam, Mr. B Gogoi, learned counsel for the authorities under the Health and Family Welfare Department including the Medical Education Department and Mr. P Saikia, learned counsel for the authorities under the Deputy Commissioner, Baksa.
2. As per our earlier order, the Additional Deputy Commissioner, Tamulpur, Smt. Kokila Gogoi is present before the Court. As per our earlier order, the Vice President of Tamulpur District Unit Tribal Sangha respondent no. 6 is present and we have also heard the Vice President Sri Pabitra Narzary.
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3. The writ petitioner Dribbleena Sarania is an intending candidate for admission into the 1st Year MBBS Course for the year 2023 and seeks for an admission under the reserved category of Scheduled Tribes (Plains) [in short ST(P)]. The petitioner relies upon a certificate issued by the All Assam Tribal Sangha, Tamulpur District Unit dated 26.03.2023, wherein it is certified that Dribbleena Sarania daughter of Khargeswar Sarania of village Bhakatpara in the Baksa district belongs to ST(P) being a member of Boro Kachari community which is recognized as a ST(P) under the Constitution of India (Scheduled Tribes) Order 1950 as amended from time to time. The said certificate is signed by the Vice President of Tamulpur District Tribal Sangha and is also countersigned by the Sub-Divisional Officer, Tamulpur. The petitioner also relies upon another certificate dated 03.07.2023 also issued under the signature of Vice President of Tamulpur District Tribal Sangha and countersigned by the Sub- Divisional Officer which also contains the same information. As the other certificate dated 03.07.2023 that the petitioner Dribbleena Sarania belongs to the Boro Kachari community which is recognized as a ST(P) in the State of Assam had been verbally withdrawn by the Additional Deputy Commissioner, Tamulpur, being aggrieved, this writ petition is instituted.
4. By the order dated 25.07.2023 the petitioner was permitted to upload caste certificates dated 26.03.2023 and 03.07.2023 for the purpose of admission into the 1st Year MBBS Course and accordingly, the petitioner had been given a provisional admission under the ST(P) category. The last date of finally admitting a student into the 1st Year MBBS Course is fixed by the Hon'ble Page No.# 4/10 Supreme Court to be 30th September of every year, meaning thereby, that for this year the last date of admission would be 30.09.2023. In the order dated 25.07.2023, it was further provided that in the meantime, the Additional Deputy Commissioner shall take a decision on the Caste Certificate of the petitioner in terms of the communication dated 24.07.2023 of the Additional Secretary to the Government of Assam in the Department of Tribal Affairs.
5. In other words by the order dated 25.07.2023 based upon which the petitioner was given a provisional admission, there is also a requirement of the Additional Deputy Commissioner to arrive at a definite conclusion as to whether the caste certificate issued to the petitioner is otherwise a valid and acceptable certificate in law as well as on facts. Considering the urgency in the matter that whatever decision has to be taken would have to be done before 30.09.2023, by our earlier order dated 25.09.2023, we required the Vice President of Tamulpur District Unit Tribal Sangha as well as the Sub-Divisional Officer, Civil Tamulpur who had signed and countersigned the certificates indicated above to remain personally present before the Court. In response thereof, the Vice President of Tamulpur District Unit Tribal Sangha Sri Pabitra Narzary and the Additional Deputy Commissioner, Tamulpur, Smt. Kokila Gogoi were present before the Court. Accordingly, by our earlier order of 25.09.2023 we required the aforesaid two officials to make a factual enquiry in the village of the petitioner Bhakatpara as to whether the petitioner and her family who writes the surname ' Sarania' do actually belong to the Boro Kachari community.
6. Today i.e. on 28.09.2023, when the matter is taken up, both Sri Pabitra Narzary, Vice President of Tamulpur District Unit Tribal Sangha and Smt. Kokila Gogoi, Additional Deputy Commissioner, Tamulpur have made a statement that Page No.# 5/10 inspite of all the enquires being made in the field level, including the family of the petitioner as well as the other families of village Bhakatpara who are also using the surname 'Sarania', no material could be found that the persons like the petitioner, who are also using the surname 'Sarania" do actually belong to Boro Kachari community.
7. In the circumstance, we are constrained that a determination on the question as to whether the writ petitioner belongs to the 'Boro Kachari' community would have to be made within the shortest possible time i.e. on or before 29.09.2023 i.e. tomorrow. The question that has to be answered is as to whether the petitioner belongs to the Boro Kachari community. We have to be conscious that if a person taking advantage of an interim order gets provisionally admitted, but because of time constraint, the provisional admission cannot be converted to a final legal right to be admitted without the core question being determined.
8. Mr. M Sarania, learned counsel for the petitioner has raised a lengthy argument by referring to a resolution of the All Assam Tribal Sangha dated 29.09.2023 wherein as per resolution no. 2 the decision taken in the Chilapathar Session of the Sangah would remain in force, as regards the recognition as a ST(P) to such persons, who use the surname 'Sarania'. No material has been produced as to what was the resolution in the Chilapathar Session of All Assam Tribal Sangaha. Reliance is also placed on a communication dated 29.06.2009 from the General Secretary of the All Assam Tribal Sangha made to the President and Secretary of the District Units of the All Assam Tribal Sangha that there is an instruction to adhere to the decision taken in the Executive Page No.# 6/10 Committee meeting of the All Assam Tribal Sangha held on 23.03.2009 and to issue caste certificates to Sarania Kachari people known under the surname Sarania to be belonging to the Boro Kachari Sub-Caste or Rabha after proper identification.
9. Mr. M Sarania, learned counsel for the petitioner also relies upon a list of members in the Assam Legislative Assembly and gives examples of certain names like that of Srijut Beliram Das who was a member of the Assembly for the period 1937-1946, but was a representative of the Kamrup Sadar Constituency which was a reserved constituency. Similar entries are also indicated amongst the members of the Assam Legislative Assembly that persons bearing surnames like Das, Deka etc. are also being elected as members of the Assembly under the reserved constituency for the ST community. By relying on such material, it is the submission of Mr. M Sarania, learned counsel for the petitioner that the persons with other surnames can also belong to the ST community. What we understand of the submission of Mr. M Sarania, learned counsel for the petitioner by referring to the list of members of the Assam Legislative Assembly Constituency bearing some other surnames, but elected to a reserved constituency is that a person having another surname can also belong to ST community. But in the instant case, the requirement is to arrive at a decision as to whether the writ petitioner do belong to the 'Boro Kachari' community and whether in spite of the different surname 'Sarania' she belongs to the ST community.
10. As regards the communication dated 29.06.2009, we extract the relevant provisions thereof:
Page No.# 7/10 "Therefore, I am directed to instruct you to adhere the decision taken in the last Executive Committee meeting of AATS held on 23rd March 2009 and to issue Caste Certificate to Sarania Kachari people as "Sarania" surname and sub-caste "Boro- Kachari" or "Rabha" after proper identification by the primary units of the Sangha."
11. The said communication from the General Secretary of All Assam Tribal Sangha for a direction to the District Units to issue a caste certificate to the Sarnia Kachari people who are known with the surname Sarnia to be a sub- caste of Boro Kachari or to the Rabha community cannot be accepted under the Constitution to be a determination that a person with a surname Sarania would also be included in the sub-caste Boro Kachari or the community Rabha. The question as to whether a particular community belongs to ST can only be decided by the Parliament under Article 342(1) by means of the Constitution (Scheduled Tribes) Order, 1950, as amended from time to time. The Constitution does not provide the authority to any other authorities to decide as to whether a particular community whether or not bearing a particular surname would belong to the ST community plains or hills.
12. From such point of view, we do not find any constitutional acceptance of the communication of the General Secretary of the All Assam Tribal Sangha. The All Assam Tribal Sangha bearing registration No. 504/1976-77 can at the best accepted to be a society which functions for the benefits of the ST people, but being a society, it does have any constitutional authority to determine as to whether a particular community belongs to the ST category or not. In this respect we also take note that earlier by a Notification No. TAD/BC/291/214/105 dated 05.06.2018 the persons belonging to the Sarania community were included by the Governor of Assam to be a ST(P) community in Assam. When Page No.# 8/10 the said notification was assailed in a PIL before the Court, the respondents had produced a communication dated 28.02.2003 of the Joint Secretary to the Government of Assam in the Tribal Affairs Department that the said notification stood withdrawn and accordingly, the PIL was closed. In other words, we have to understand that in order to include a community as a ST(P) or ST(H) under the Constitution (Schedule Tribes) Order 1950, it is only the Parliament who has the jurisdiction to do and not any other authority.
13. From such point of view, all such communications/ resolutions of the All Assam Tribal Sangha cannot be a basis to issue a caste certificate to the petitioner that she belongs to the Boro Kachari community. But however, it is also the submission of Mr. M Sarania, learned counsel for the petitioner that certain persons using the surname Sarania do it only for the name sake but otherwise originally belong to the Boro Kachari community. Although we have to accept that as a community as a whole or on the basis of surnames a person cannot be construed to be belonging to the Boro Kachari community but if there are individual cases that persons using surnames do actually belong to the Boro Kachari community that would require a factual determination specific to the purpose.
14. The said aspect had already been decided by the judgment and order dated 01.03.2023 in PIL /30/2019 wherein it had been held that if a particular individual claims to be belonging to any of the recognized ST communities under the Constitution (Scheduled Tribes) Order, 1950, it is the Committee formed, as per the requirement of the Hon'ble Supreme Court in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development and others reported in (1994) 6 SCC 241 in paragraph 13 which would be the relevant authority to make a decision on the said aspect. We are of the view that it is also not the Page No.# 9/10 Court under Article 266 which can make that decision unless a decision of the Committee is assailed in a writ petition.
15. We also take note of the time constrain that whatever decision on the claim of the petitioner to be ST would have to be taken on or before 30.09.2023. Accordingly, considering the urgency we require the petitioner to appear before the State Level Caste Scrutiny Committee today itself i.e. on 28.09.2023 and Mr. R Dhar, learned Additional Senior Government Advocate for the Tribal Affairs (Plains) Department and Mr. B Gogoi, learned counsel for the authorities under the Medical Education Department shall facilitate the process that the claim of the petitioner can be given a consideration by the said Committee.
16. Mr. M Sarania, learned counsel for the petitioner states that presently the petitioner is in Nagaon and therefore, it would take some time for her to reach Guwahati for appearing before the Committee. Accordingly, Mr. M Sarania, learned counsel for the petitioner, Mr. R Dhar, learned Additional Senior Government Advocate for the Tribal Affairs (Plains) Department and Mr. B Gogoi, learned counsel for the Medical Education Department shall coordinate with each other and fix an appropriate time in course of the day enabling the petitioner to appear before the Committee and the Committee after doing the needful shall pass a reasoned order. We also require the Additional Deputy Commissioner, Tamulpur Smt. Kokila Gogoi as well as the Vice President of Tamulpur District Tribal Sangha Sri Pabitra Narzary to remain personally present before the Committee so that they can also provide their views to the Committee.
17. The Committee is requested to give a final report so that the report can be placed before the Court tomorrow i.e. on 29.09.2023 for a consideration.
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18. List on 29.09.2023.
19. Further appearance of the Additional Deputy Commissioner, Tamulpur Smt. Kokila Gogoi as well as the Vice President of Tamulpur District Tribal Sangha Sri Pabitra Narzary stand dispensed with.
20. A copy of this order be provided to all the learned counsel for doing the needful.
JUDGE Comparing Assistant