Himachal Pradesh High Court
Unknown vs Union Of India And Others on 4 January, 2024
Bench: M.S. Ramachandra Rao, Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMP 15611 of 2023 in CWP No. 8301/2023 along with connected CMPs in connected matters.
of Reserved on: 20.12.2023 Decided on: 04.01.2024.
1. CMP no. 15611 of 2023 in CWP no. 8301/2023 rt Giripar Anusuchit Jaati Adhikar Sanrakshan Samiti ....Applicant/Petitioner.
Versus Union of India and others .....Respondents.
2. CMP no. 16792 of 2023 in CWP no. 9036/2023 Smt. Renu Chauhan ...... Applicant/Petitioner.
Versus Union of India and others ......... Respondents.
3. CMP no. 17653 of 2023 in CWP no. 9528/2023 Gujjar Samaj Kalyan Parishad and others .... Applicants/Petitioners.
Versus Union of India and others ..... Respondents.
4. CMP no. 17949 of 2023 in CWP no. 9737/2023 Sh. Abhishek Tomar and others ....Applicants/Petitioners.
Versus Union of India and others .....Respondents.
5. CMP no. 18022 of 2023 in CWP no. 9771/2023 Smt. Sakshi Tomar ....Applicant/Petitioner.
Versus Union of India and others .....Respondents.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 26. CMP no. 18023 of 2023 in CWP no. 9772/2023 .
Manoj Kumar .......Applicant/Petitioner.
Versus Union of India and others .....Respondents.
7. CMP no. 18126 of 2023 in CWP no. 9816/2023 of Babita Thakur ....Applicant/Petitioner.
Versus rt Union of India and others .....Respondents.
8. CMP no. 18214 of 2023 in CWP no. 9929/2023 Arun Chauhan ....Applicant/Petitioner.
Versus Union of India and others .....Respondents.
9. CMP no. 18315 of 2023 in CWP no. 9982/2023 Samar Veer Singh ....Applicant/Petitioner.
Versus Union of India and others .....Respondents.
Coram:
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?
CMP no. 15611/2023 in CWP no. 8301/2023 For the applicant/petitioner:Mr. Colin Gonsalves, Sr. Advocate with Mr. Rajendra Gulari and Mr. Suresh Singh Saini, Advocates.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondents no. 1 to 6.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 3 and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 7 to 11.
.
Mr. Ashok Sharma, Sr. Advocate with Ms. Anubhuti Sharma, Advocate, for the applicant in CMP no. 18821/2023.
___________________________________________________________ CMP no. 16792/2023 in CWP no. 9036/2023 For the applicant/petitioner: Mr. Sunil Mohan Goel, Mr. Parash Dhaulta and of Mr. Vinod Chauhan, Advocates.
For the respondents: rt Mr. Balram Sharma, Deputy Solicitor General of India for respondents no. 1 to 6.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 2 to 6.
___________________________________________________________ CMP no. 17653/2023 in CWP no. 9528/2023 For the applicant/petitioner: Mr. Rajnish Maniktala Sr. Advocate with Mr. Naresh Verma and Mr. Anil Kumar Manget Advocates.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondents no. 1 to 4.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 5 to 11.
___________________________________________________________ CMP no. 17949/2023 in CWP no.9737/2023 For the applicant/petitioner: Mr. Rajiv Rai, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondent no. 1.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 4 and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 2 to 4.
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Mr. B.N. Misra Sr. Advocate with Ms. Vandana Misra, Advocate, for respondent no.5.
______________________________________________________ CMP no. 18022/2023 in CWP no. 9771/2023 For the applicant/petitioner: Mr. Vinod Chauhan, Advocate.
of For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondent no. 1.
rt Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 2 to 4.
Mr. Prashant Sharma, Advocate, for respondent no.5.
___________________________________________________________ CMP no. 18023/2023 in CWP no. 9772/2023 For the applicant/petitioner: Mr. S.S. Jasrotia, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondent no. 1.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 2 to 4.
___________________________________________________________ CMP no. 18126/2023 in CWP no. 9816/2023 For the applicant/petitioner: Mr. Vinay Sharma, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondent no. 1.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General, for respondents No. 2 to 4.::: Downloaded on - 04/01/2024 20:38:22 :::CIS 5
Mr. Vikrant Thakur, Advocate, for respondent no. 5.
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CMP no. 8214/2023 in CWP no. 9929/2023 For the applicant/petitioner: Mr. Anil Kumar, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondents no. 2.
Mr. Anup Rattan, Advocate General, with Mr. of Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates rt General, for respondents No. 2 to 4.
___________________________________________________________ CMP no. 18315/2023 in CWP no. 9982/2023 For the applicant/petitioner: Mr. Aashish Kumar, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor General of India for respondent no. 1.
Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General, for respondents/Scheduled Tribeate.
M.S. Ramachandra Rao, Chief Justice CMP.No.15611/2023 in CWP No.8301/2023 In CWP No.8301/2023 filed on 27.9.2023, the petitioner has challenged the constitutional validity of the Constitution (Scheduled Tribes) orders (Second Amendment) Act, 2023 (for short "the impugned law") which was published in the Gazette of India on 4.8.2023 by reason of which "Hattees of Trans-Giri Area of Sirmour District" in the State of Himachal Pradesh have been included in the Schedule to the Constitution ( Scheduled Tribes) Order,1950 as entry 11 thereto.::: Downloaded on - 04/01/2024 20:38:22 :::CIS 6
The petitioner in CWP No.8301/ 2023 is the Giripar Anusuchit Jati Adhikar Sanrakshan Samiti registered under the H.P.Societies .
Registration Act,2006 on 17.8.2022. It claims to be an organisation working for the protection of the Scheduled Caste Community in the Trans-Giri region of Sirmour Ditrict of the State of Himachal of Pradesh. It stated that it is representing the Scheduled Castes of the Trans Giri Area before this Court.
rt The petitioner had impleaded 11 respondents as parties in CWP.No.8301/2023. They are:
(i) The Union of India , Ministry of Home Affairs rep. by it's Secretary
(ii) The Union of India, Ministry of Social Justice and Empowerment through it's Secretary
(iii) Union of India, Ministry of Tribal Affairs through it's Secretary
(iv) The National Scheduled Caste Commission through Secretary
(v) Union of India through it's Registrar General and Census Commissioner, India, Ministry of Home Affairs, Govt. of India ( for short "Registrar General")
(vi) National Commission for Scheduled Tribes through it's Secretary
(vii) State of Himachal Pradesh through Principal Secretary ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 7
(viii) State of Himachal Pradesh, Ministry of Social Justice and Empowerment through it's Secretary .
(ix) State of Himachal Pradesh, Ministry of Tribal Affairs through it's Secretary
(x) The Scheduled Caste Commission of the State of of Himachal Pradesh through it's Secretary
(xi) The State of Himachal Pradesh, Ministry of Tribal rt Development Department through it's Secretary A Society by name Hattee Samiti Kendriya Karyakarni Giri Paar Kshetra, Sirmaur District, Himachal Pradesh, a body also registered under the Societies Registration Act,1860 with registration No.4497/1985, had filed CMP.No.18821 /2023 seeking impleadment in the CWP No.8301 /2023 . It claimed that it is a representative body of the Hattee community of Trans Giri Area irrespective of caste or status and seeks to support the impugned law.
This application was not opposed by petitioner and it was allowed on 18.12.2023. The said party was impleaded as respondent No.12 in the said Writ Petition.
The petitioner in CWP No.8301/2023 had filed CMP No.15611/2023 to the stay the operation of the said Constitution (Scheduled Tribes) orders ( Second Amendment) Act,2023 during the pendency of the Writ Petition.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 8On 1.11.2023, this Court issued notice to the respondents in CWP.NO.8301/2023, admitted the writ petition through a .
detailed order after hearing the submissions of Sri Colin Gonsalves, Sr.Advocate representing the petitioners, and directed it to be listed on 18.12.2023. It directed the respondents of to file replies by the said date and fixed the said date also for consideration of CMP NO.15611/2023 filed therein seeking stay rt of the said law.
CMP No.17653/2023 in CWP.No.9528/2023 The Gujjar Samaj Kalyan Parishad, another Society regstered under the Societies Registration Act,1860 for upliftment of the Gujjar Tribal community, which is a Scheduled Tribe, had filed on 16.11.2023, CWP No.9528/ 2023 also challenging the Constitution (Scheduled Tribes) orders ( Second Amendment) Act,2023.
It had impleaded as respondents the following parties:
(i) Union of India through Secretary, Ministry of law and Justice
(ii) Union of India through Secretary, Ministry of Tribal Affairs
(iii) Union of India through Secretary, Ministry of Home Affairs
(iv) Registrar General of India, Govt. of India ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 9
(v) State of Himachal Pradesh through it's Chief Secretary
(vi) State of Himachal Pradesh through it's Principal .
Secretary , Tribal Development Department
(vii) The Deputy Commissioner, District Sirmour, Nahan, Himachal Pradesh.
of It had also filed CMP.No.17653 of 2023 seeking stay of the impugned legislation.
rt On 30.11.2023, notice was ordered in this Writ Petition and a direction was given to list it with CWP.No.8301/2023 on 18.12.2023. Parties were directed to filed replies in the meantime.
Hearing on 18.12.2023 Inspite of fact that this court had granted about 7 weeks for filing of replies to the aforementioned respondents, they have not chosen to file replies with supporting material in the CWP.No.8301/2023.
Therefore as directed in the order dt.1.11.2023, this Court took up hearing on 18.12.2023 of CMP.No. 15611/2023 to stay the operation of the said Constitution (Scheduled Tribes) orders ( Second Amendment) Act,2023 during the pendency of the Writ Petition.
This was done in view of the assertion of the Senior Counsel for the petitioner in CWP.No.8301/2023 that in the ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 10 absence of stay order, the respondents are intending to implement the law and issue Scheduled Tribe certificates which .
will then be utilised by the said persons to seek admission to educational institutions and also employment apart from seeking election to tribal constituencies and posts in Panchayats which of are reserved for Scheduled Tribes. He stated that there is therefore urgency to take up the stay application CMP.No. 15611/2023.
rt The Senior Counsel for the petitioner in CWP.No.9528/2023 reiterated the above submissions and had even placed before this Court a Provisional Scheduled Caste Certificate issued to the petitioner in CWP.NO.9519/2023 on the basis of an interim order dt.29.11.2023 in CMP.No.17620/2023 passed in the said CWP for purpose of appearing in the JEE (Main) examination 2024.
The Advocate General representing the State of Himachal Pradesh and the Dy.Solicitor General, representing the Union of India etc. sought time for filing replies.
But since the Advocate General stated that applications for issuance of Scheduled Tribe Certificates are being considered in view of certain interim orders passed by this Court (though the State Government had addressed letters to the Union of India seeking certain clarifications from the latter which are yet to be ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 11 received), and since there were requests also from petitioners in other CWPs tagged on to CWP No.8103/2023 (other than .
CWP.NO.9528/2023) for issuance of directions by us on similar lines, it was felt desirable to consider the interim applications.
The matters were heard elaborately on 18.12.2023, of 19.12.2023 and 20.12.2023.
The Locus of the Petitioners rt It was contended buy the Senior Counsel appearing for respondent No.12 in CWP. No.8301/2023 that CWP No.8301/2023 and CWP.No.9528/2023 are in the nature of "class action", that they ought to have been classifies as "Public Interest Litigation" and petitioners ought to therefore comply with the Rules framed by this Court for filing of such type of litigation. He contended that since they did not choose to do so, the petitions ought to be dismissed. He placed reliance on the decision of the Supreme Court in State of Jharkhand v. Shiv Shankar Sharma and others1 in support of his plea.
Counsel for the petitioners in the said Writ Petitions however refuted the said contention and stated that their members belong to the Scheduled Caste and Scheduled Tribe Communities who are "aggrieved" by the impugned law; so they cannot file "Public Interest Litigation" and can only file Regular Writ Petitions.
1 2022 SCC Online SC 1541 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 12 In S.P. Gupta v. Union of India2, Justice P.N.Bhagwati held:
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" 18. ....If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding of paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or rt determinate class or group of persons and they would be entitled to maintain an action for judicial redress."
( emphasis supplied) Since in the CWP.No.8301/2023 and CWP.No.9528/2023, the petitioner Societies represent interests of Scheduled Castes and Scheduled Tribes respectively, and they are contending that the impugned law is violative of the rights conferred on them by the Constitution of India under Part III and in particular Art.14 and Art.15, Art.17 and Art.21, prima facie they are representing "persons aggrieved" who claim to have suffered personal injury. So the said CWPs cannot prima facie be treated as "Public Interest Litigation" and the petitioners cannot be asked to comply with the requirements of the Rules framed by this Court for filing of "Public Interest Litigation".
The legal position on grant of interim relief There is undoubtedly a presumption of constitutionality of legislation passed by a competent legislature. 2 1981 Supp SCC 87, at page 211 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 13 However counsel for petitioners in CWP.No.8301/2023 and CWP.No.9528/2023 pointed out that the Supreme Court has .
pointed out that this is a rebuttable presumption and that in several cases the Supreme Court had invalidated legislation passed by the Parliament or State Legislatures on ground of of violation of fundamental rights guaranteed by Part III of the Constitution of India.
rt Sri Sunil Mohan Goel, Counsel for petitioner in CWP No.9036 of 2023, placed reliance on the judgment of the 3 Supreme Court in State of Bihar v. Bihar Distillery Ltd to contend that a Staute cannot be struck down saying it is arbitrary.
But a 5 Judge Bench of the Supreme Court in Shayara Bano v.Union of India4 overruled the said view and held (Nariman J) that legislation can be invalidated on ground of manifest arbitrariness. The Supreme Court laid down as under:
"101. ...The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out 3(1997) 2 SCC 453 = AIR 1997 SC 1511 4(2017) 9 SCC 1 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 14 by us above would apply to negate legislation as well under Article 14." (emphasis supplied) .
This was reiterated in Independent Thought v. Union of India5. Similar view was also taken in State of A.P. vs. Mc Dowell and Co6 and in A.P.Diary Development Corpn.Federation v. B.Narasimha Reddy7.
of Of course at this stage, without the respondents having rt filed replies in these Writs, we are not examining this aspect deeply but only a prima facie view is being taken on the aspect which will have no bearing on the matter when it is finally heard later.
The Dy.Solicitor General, appearing for the Union of India and the Advocate General appearing for the official respondents in CWP.No.8103/2023 and CWP No.9528/2023 also contended that implementation of legislation cannot be stayed by this Court.
In Health for Millions v. Union of India 8 the Supreme Court considered the question whether a legislation can be stayed, and if so in what circumstances. It held that a provision manifestly unjust or glaringly unconstitutional may be stayed in exceptional cases, but otherwise the Courts must show judicial 5(2017) 10 SCC 800 6 (1996) 3 SCC 709 para 43 7 (2011) 9 SCC 286 para 29 8 (2014) 14 SCC 496 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 15 restraint in view of the presumption of constitutionality of legislation. It declared:
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"13. We have considered the respective arguments and submissions and carefully perused the record. Since the matter is pending adjudication before the High Court, we do not want to express any opinion on the merits and demerits of the writ of petitioner's challenge to the constitutional validity of the 2003 Act and the 2004 Rules as amended in 2005 but have no hesitation in holding that the High Court was not at all justified rt in passing the impugned orders ignoring the well-settled proposition of law that in matters involving challenge to the consitutionality of any legislation enacted by the legislature and the rules framed thereunder the courts should be extremely loath to pass an interim order. At the time of final adjudication, the court can strike down the Statute if it is found to be ultra vires the Constitution. Likewise, the rules can be quashed if the same are found to be unconstitutional or ultra vires the provisions of the Act. However, the operation of the Statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or the rules are ex facie unconstitutional and the factors, like balance of convenience, irreparable injury and public intereste are in favour of passing an interim order." (emphasis supplied) In Bhavesh D. Parish v. Union of India9 too a similar view as taken. It was held:
" 30. ... When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change, then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same. Merely because a Statutee comes up for examination and some arguable point is raised, which persuades the courts to 9(2000) 5 SCC 471, at page 486 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 16 consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well settled that there is always a presumption in favour of the .
constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating of economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself."
rt Recently in Jaishri Laxmanrao Patil v. State of Maharashtra10 the Supreme Court reiterated that if the Court is convinced that the Statute is ex facie unconstitutional and the factors like balance of convenience, irreparable injury and public interest are in favor of passing an interim order, the Court can grant interim relief. Unless the provision is manifestly unjust or glaringly unconstitutional, the courts do show judicial restraint in staying the applicability of the same.
Keeping these parameters in mind, we shall now consider whether the petitioners in CWP.No.8301/2023 and CWP No.9528/2023 have made out a case for grant of interim relief or not.
Consideration by the Court Before we deal with the respective contentions and the question whether there is any case made out for grant of interim relief staying the operation of the impugned law, we may state 10(2021) 2 SCC 785 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 17 the relevant provisions of the Constitution and other relevant legal provisions.
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Clause (1) of Art.341 of the Constitution of India empowers the President of India to specify, by way of public notification, with respect to a State or Union territory, after of consultation with the Governor of the State, castes, races or Tribes or parts of or groups within castes, races or Tribes which rt shall for the purpose of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory.
Clause (2) of Art.341 enables the Parliament to make a law for inclusion or exclusion from the list of Scheduled Castes specified in the notification issued under clause (1) thereof.
Clause (1) of Art.342 of the Constitution of India empowers the President of India to specify, by way of public notification, with respect to any State or Union Territory, after consultation with the Governor of the State, Tribes or tribal communities or parts of groups within Tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to a State or Union Territory. Clause (2) of Art.342 enables the Parliament to make a law for inclusion or exclusion from the list of Scheduled Tribes specified in the notification issued under clause (1) thereof.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 18Pursuant to these powers the President of India had issued the Constitution (Scheduled Castes) Order,1950 and the .
Constitution (Scheduled Tribes) Order,1950.
While the Constitution (Scheduled Castes) Order,1950 contains list of castes which are Scheduled Castes in respect of of each State or Union Territory, the Constitution ( Scheduled Tribes) Order,1950 contains list of castes which are Scheduled rt Tribes in respect of each State or Union Territory.
There are in these lists, 52 Scheduled Castes specified (Annexure P-14 in CWP.No.8301/2023) and 6 Scheduled Tribes qua the State of Himachal Pradesh (Annexure P-3 in CWP.NO.9528/2023).
Also the State of Himachal Pradesh had issued a notification dt.8.4.2022 declaring certain castes, classes and communities other than Scheduled Castes and Scheduled Tribes, professing any religion as Other Backward Classes (for short "OBCs") (Annexure P-7 in CWP.No.8301/2023).
These persons, who are determined as belonging to Scheduled Castes, Scheduled Tribes and Other Backward classes would be eligible to claim reservations under Art.15(4) and Art.16(4) of the Constitution of India (a) in admissions to educational institutions including those imparting professional education like Engineering, Medicine and other professional ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 19 courses etc.,(b) appointments in State Government and it's instrumentalities and (c) also compete for reserved posts such as .
Sarpanches etc in Gram Panchayats etc with the following percentages i.e., 15%, 7 1/2 % and 27% respectively.
Criteria for classifying an ethnic group as a Scheduled Tribe of A 3 member Committee headed by Sri B.N.Lokur, the then Secretary , Law Department of the Union of India was rt constituted in 1965 titled "Advisory Committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes". The said Committee suggested in para 12 of it's report dt.25.8.1965 stated:
"In revising the list of Scheduled Tribes, we have looked for indications of (i) primitive traits,(ii) distinctive culture, (iii) geographic isolation,(iv) shyness of contact with the community at large and (v) backwardness;and that we have considered that Tribes whose members have by and large mixed up with the general population are not eligible to be in the list of Scheduled Tribes"
Counsel for all parties do not dispute that these 5 characteristics need to be looked at before inclusion of any particular ethnic group as a Scheduled Tribe in the list of Scheduled Tribes qua any particular State or Union Territory.
The Ministry of Tribal Affairs had issued a press note on 28.12.2017 (Annexure P-11 in CWP.No.8301/2023) that the requirement of concurrence of the Registrar General of India ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 20 and National Commission for Scheduled Tribes, have been added to the above criteria.
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According to the petitioner in CWP No.8301/2023, a task force under the Chairmanship of the then Secretary (Tribal Affairs) was constituted by the Ministry of Tribal Affairs in of February,2014 to examine the existing criteria and procedure and the said task force had made recommendations as under:
rt "Socio-economic, including educational backwardness, vis-
avis the rest of the population of the State; Historical geographical isolation which may or may not exist today; Distinct language/dialect; presence of a core culture relating to life-cycle, marriage, songs, dance, paintings, folklore; Endogamy or in case of exogamy, marital relationship primarily with other STs."
In 1995, 2006 and 2017 the Union of India had rejected the plea or inclusion of Hatteee Community of Trans-Giri Area in the list of STs qua the State of Himachal Pradesh The first rejection in 1995 Petitioners allege that for the first time in 1995, a demand was raised to include Hattees of the Trans-Giri region of District Sirmaur as Scheduled Tribes by the then State Government, but the same was rejected vide letter dt.29.11.1995 of the Ministry of Home Affairs, Union of India to the Ministry of Welfare of the State of Himachal Pradesh noting as under:
" (a) It was not in favour of declaring a geographical area as a "Scheduled Area" or the inhabitants of that area as ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 21 "Scheduled Tribes", using a blanket term to cover all inhabitants, whether deserving Scheduled Tribe Status or possessing tribal characteristics or not, and is against the .
principle of notification or declaring them as ST(s).
(b) inclusion of territorial names and functional names not specifying any ethnic group is not being considered for inclusion in the list of SCs/STs."
The Second Rejection on 10.3.2006.
of It appears that again such a request for inclusion of Hattees of the Trans-Giri region of District Sirmaur as rt Scheduled Tribes by the then State Government on 4.5.2005.
The Ministry of Home Affairs addressed a letter dt.10.3.2006 (Annexure P-5 in CWP.No.8301/2023) to the Joint Secretary, Ministry of Tribal Affairs, Union of India referring to the earlier rejection of 29.11.1995 at para B and reasons for such rejection; and reiterating it's disapproval for the 2005 proposal of the then State Government as under:
" According to the State Government, all inhabitants of "Giripar" region of Sirmour District are called Hattee. These include several castes namely Khosh, Koll, Bhaty, Dhaki, Barayee, Doom, Lohar, Chanal, Chamar etc. Therefore the term "Hattee" represents a blanket or generic term applicable to a number of castes; it does not refer to a Tribe or tribal community or part of or group within a Tribe. Therefore, this proposal is against the provision of Art.342(2) of the Constitution of India.
Most of the castes reported under the term "Hatteo"
( namely, Koli, Dhaki, Doom, Lohar, Chanal, Chamar etc.,) are enjoying the status of Scheduled Castes in the State at present. It indicates that these are castes ( not Tribes), who suffer from ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 22 social, educational and economic backwardness arising out of the historical custom of untouchability.
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This office is not in favour of inclusion of blanket/generic term or territorial name representing more than one Castes/ Tribes in the State's STs list, , as it is against the provision of Article 342(2) of the Constitution."
The third Rejection dt.14.2.2017 of On 14.2.2017, the Registrar General and Census Commissioner, India, Ministry of Home Affairs, Govt.of rt India had addressed a D.O. letter No.8/1/2017 -SS (Himachal Pradesh) ( Annexure P-4 in CWP.No.8301/2023) to the Joint Secretary, Govt. of India, Ministray of Tribal Affairs when his comments had been sought on the proposal of the Himachal Pradesh Government for inclusion of "Hattee"
community of entire Trans Giri Area of Sirmour District. He stated that the proposal had been examined as per existing criteria and modalities taking into account the information furnished by the State Government and the facts available in the standard published ethnographic literature, and that his Office does not support the proposal.
In his comments he made the following observations on which counsel for the petitioners place reliance:
"(i) 'Hattee' is a blanket term or generic term applied for all inhabitants of the Trans Giri region of Sirmour District;
the term "Hattee" includes several heterogeneous communities namely, Rajputs, Brahmans and Scheduled ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 23 Castes e.g., Badhai(carpenter), Dhaki, Lohar, Koli, Chanal, Dom,Chamar and Bhangi etc,. The term Hattee does not refer to a distinct Tribe or a single community. Using a .
blanket term to cover all inhabitants, whether they deserve Scheduled Tribe status or not, is at present against the principle of notification or declaring community/communities as Scheduled Caste/Tribes. Inclusion of territorial names and functional names not of specifying any ethnic groups are not being considered now for inclusion in the list of Scheduled Castes/ Tribes until and unless they stand for any specific group.( para 2 rt of the said comments in Annexure P-4 in CWP.No.8301/2023).
(i) The Office of the Registrar General of India does not have any published ethnographic information on "Hatteee"
community. As stated in the report "Hattee" term is used for three social groups i.e., Rajput, Brahmin and Scheduled Castes. It does not refer to single homogenous ethnic group/community. Rajput and Brahman cannot be treated as Scheduled Tribe. 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. Of course they are living in tough geographical terrain having the snowbound areas, but it cannot be sole criterion for treating a community as Scheduled Tribe. ( para 5 of the comments of the ORGI in Annexure P-4 in CWP.NO.8301/2023)"
In the face of outright rejection on three previous occasions in 1995, 2006 and 2017 of the proposal to give reservation as Scheduled Tribes to the Hattee community in Trans Giri Area of Sirmour District on the grounds of (i) lack of homogeneity in the population of the said area (ii) that it is ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 24 undesirable to have inclusion in the list of SCs/STs, territorial names and functional names not specifying any ethnic group .
and (iii) that Hattee is a blanket term to cover all inhabitants, whether they deserve Scheduled Tribe status or not, very strong reasons and justification ought to be provided by the of Union of India and the State Government for now taking a diametrically opposite view in August,2023 and enacting the rt impugned law. At this stage, as we explain below, it is not forthcoming.
Prima facie case of manifest arbitrariness.
The Union of India and the State Government placed reliance on an Ethnographic Report (Annexure P-12 in CWP.NO.8301/2023) submitted in 2018 by the Tribal Development Department, State of Himachal Pradesh to justify the recommendation of the State Government for inclusion of Hattee community of Trans Giri region of Sirmour District.
Counsel for the petitioners have raised several objections in relation to the said report at paragraphs 25-73 in CWP No.8301/2023 and at paragraphs para 22-27 in CWP No.9528/2023. Inter alia they contended :
(a) There is no material on record/justification to show as to why the Brahmins, who have been notified as an ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 25 OBC caste, are now suddenly changed to Scheduled Tribe;
.
(b) There is no material on record/justification to show as to why the 6 castes which are notified as Scheduled Caste have, suddenly in the impugned notification, of being shown as Scheduled Tribe ;
(c) The ethnographic report of 2018 is not an academic rt report, but is a political document created to serve the political interests of the Brahmin and Rajput community in the State; it is not rigorous or academic in it's presentation; it gives no references; it jumps to conclusions without revealing the basis of documents or studies on which the conclusions are based; and even a casual reading will show that reliance on such a report is not warranted.
(d)There is nothing common socially, economically or culturally between the dominant Rajput and Brahmin communities and the Scheduled Caste community.
Counsel for petitioners drew the attention of this Court to the Statistical Abstract of Himachal Pradesh 2019-20 prepared by the Department of Economic and Statistics of the Government of Himachal Pradesh which contained upto-date data for various parameters for all Districts in the said State including Sirmour, and contended that there is no more any ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 26 geographical isolation as there is good road connectivity to the rest of the State , and that the ethnographic report relies .
on very old publications to present a geographical isolation which no more exists.
They point out that Sirmour District has 85.61% male of literacy, 71.36% female literacy as per 2010-11 census; that it has good mining activity and industry and reasonably good rt tourism.; that it ranks 5th out of 12 Districts in Himachal Pradesh in terms of area of food grains under cultivation;
ranks 4th for area under oil seeds and oil seeds production,4 th in terms of area under high yield variety wheat crops, 3 rd in terms of paddy, 6th in terms of area under fruits and production of fruits, 3rd in terms of fish production, 5 th in terms of export of fish, 5th in terms of number of livestock and poultry, 2nd in terms of registered factory workers, 5th in terms of motor vehicles registered, 5th in terms of Primary Schools and Middle Class Schools, 4th in terms of Higher Secondary Schools, 3rd in terms of Govt.Degree colleges, 5th in terms of enrolment for education, 6 th in terms of literates, 6th in terms of employment, 8th in terms of LPG and 5th in terms of police Stations.
Counsel for petitioners contend that in view of above data of 2019-20 showing the substantial progress and prosperity of Sirmour District vis-a vis other Districts, the ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 27 contents of the Ethnographic report of 2018, which ignores these facts, ought not to be relied on to justify grant of .
reservation to the Hattee community of Sirmour District under the impugned law.
The Deputy Solicitor General and the Advocate of General however stated that this data pertains to the entire Sirmour District and not to the Trans Giri region thereof.
rt But such data specific for the said region also is not mentioned anywhere in the ethnographic report of 2018. Nor is it produced before this Court by them to justify the recommendation in the said report inspite of having been given an opportunity to do so.
Prima facie it appears that relevant data available with the respondents of the above nature was overlooked by the respondents before recommending the said proposal for inclusion in the ST list from 13.4.2022 onwards (recommendation of the Registrar General of India discussed below) for some unknown reasons.
In Ram Singh v. Union of India11,the Supreme Court has emphasized the need to consider reservation to new groups on the basis of contemporaneous inputs and not on outdated 11(2015) 4 SCC 697, at page 725 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 28 or antiquated data in the context of grant of OBC reservation to certain groups.
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" 49. ... ... One such issue arises from the contentions advanced on behalf of the respondents, particularly on behalf of the Union Government, that the OBC Lists of the States concerned, by themselves, can furnish a reasonable basis for the exercise of of inclusion in the Central Lists. The above contention is sought to be countenanced by the further argument that the Union and the State Governments under the constitutional scheme have to work rt in tandem and not at cross purposes. While there can be no doubt that in the matter of inclusion in the Central Lists of Other Backward Classes, the exercise undertaken by the State Governments in respect of the State Lists may be relevant what cannot be ignored in the present case is the very significant fact that in respect of all the States (except Haryana) the inclusion of Jats in the OBC Lists was made over a decade back. A decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data. In fact, under Section 11 of the Act revision of the Central Lists is contemplated every ten years. The said provision further illuminates on the necessity and the relevance of contemporaneous data to the decision-making process." (emphasis supplied) Prima facie we find force in the contention of the learned Senior Counsel for petitioners that the ethnographic report relies on obsolete and dated information and gives no references to latest data/inputs available to support the recommendation of the State and appears to be unreliable.
Counsel for the petitioners also contended that this Ethnographic report was also considered by the Office of the ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 29 Registrar General of India and he too commented (para 18 of Annexure P-23 dt.13.4.2022) as under:
.
"18. There is no published reference on Hattee community. The term Hattee has not been mentioned either in earlier census reports or in contemporary anthropological volume with respect to Himachal Pradesh such as People of of India brought out by Anthropological Survey of India in late 1990s. As emphasised in the Report, Hattee is not a homogeneous community. It includes a number of castes rt having different socio-economic status. Hatteee comprises three social groups viz., (i) upper status group consists of Bhat (Priests)& Khash-Kanet ( agriculturists)who are dominant castes, (ii) middle status group are Badhi (carpenter), Lohar (blacksmith), Dhaki/Toori (musician) and the (iii) third status group include Koli (messenger), Dom/Dum/Dumma (bamboo work and basketry), Chanal (menial workers), Chamar (leather worker) who are at the lowest rung of the society. The above mentioned castes of Trans Giri used to visit Hatt/markets to barter their local produce like Ghee, wool, ginger etc., and procure essential items. Hence they are called Hattee, a term coined by the local people.
19. The statement given in the Report that the ORGI in its earlier comments has misinterpreted inclusion of Brahmins and Rajputs in the Hattee community is neither justified nor acceptable. The 2016 study report clearly mentions that the term Hattee is used for three social groups viz., Rajput, Brahmin and Scheduled castes. This time in the 2022 report the caste names of Bhat and Khas Khanet have been written in the place of Brahmin and Rajput. It is to be pointed out that Bhats are traditionally priests and come under the Brahmins group. Similarly, Khasa Rajput is one of the section of Khasa caste. Therefore it is not correct to state ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 30 that Brahmin and Rajput are not parts of Hattee Community."
.
Having regard to the above comments of the Registrar General of India that Hattee community will include dominant castes such as Brahmins and Rajputs , we find his recommendation for inclusion of Hattee community of Trans of Giri region of Simour District (including these dominant rt castes) as Scheduled Tribes in para 25 without recommending their exclusion, totally inexplicable.
In Jaishri Laxman Rao Patil v. Scheduled Tribeate of Maharashtra12, the Supreme Court ( through Justice Ashok Bhushan and Justice Abdul Nazeer) while declaring provision of 16% reservations as a "Backward class" for Marathas in the State of Maharashtra as constitutionally impermissible for breaching the upper limit of 50% , observed in paras 475,pg.247 and para 480 pg.249 that Marathas are a dominant forward class, that they are a politically dominant caste and are in the main stream of national life, and that the said situation is not an extraordinary situation for the State to exceed the 50% limit for granting separate reservation to Marathas as OBCs. Justice Ravindra Bhat, writing the majority judgment for himself, Justice Nageswara Rao and Justice Hemant Gupta agreed with this view in para para 71 pg.89 of the judgment. Justice Ravindra Bhat quoted in para 12(2021) 8 SCC 1 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 31 1 pg.62, Franklin D.Roosevelt, the great American leader who said :
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"The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little"
of Similar would be the situation if Brahmins and Rajputs which are dominant castes, who are included in the "Hattee rt Community" of Trans Giri region, are given reservations in education and employment to the detriment of Scheduled Castes and Scheduled Tribes.
In Valsamma Paul (Mrs) v. Cochin University13, the Supreme Court had declared that when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life, but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. This principle was 13 (1996) 3 SCC 545 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 32 reiterated in Sobha Hymavati Devi v. Setti Gangadhara Swamy14.
.
This logic equally applies to the inclusion of Brahmins and Rajputs in the lists of STs being members of the Hattee community of Trans Giri region of Sirmour District.
of We are also prima facie of the view that mere residence in a difficult geographical area would not entitle the forward rt castes to claim to have the disadvantage which Scheduled tribes suffer and claim the status of the Scheduled Tribes.
The learned Deputy Solicitor General of India and the learned Advocate General for the State Government are unable to explain how forward and dominant castes like Brahmins and Rajputs would merit inclusion in the list of Scheduled Tribes since prima facie they cannot also be said to be having primitive traits, shyness of contact with the community at large and backwardness. Prima facie, treating unequals as equals results in great injustice.
Counsel for the petitioners contend that several atrocities had been committed by Brahmins and Rajputs on the Scheduled Castes and that an upper caste dominated panchayat called Khumbli traditionally resolves disputes and their decisions are binding on Scheduled Castes. They contend that 14 (2005) 2 SCC 244 ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 33 that Brahmins and Rajputs are very prosperous and own and control 80% of the total land in the region and also employ .
advanced agricultural methods, and in contrast the SC community have extreme deprivation wherein they face caste based discrimination, violence and untouchability, that they of live in extreme economic and social exclusion, their lands are not fertile and are in remote locations; that all Shamlat deh rt ( common land) has been diverted to upper castes, that they also control the natural resources such as water, irrigation and fisheries production in the region and dominate in employment and exercise control over the means of production. It is urged that the Brahmins and Rajputs are claiming ST status to prevent filing of cases under the SC/ST (Prevention of Atrocities) Act,1989.
We may also state that the Registrar General in para 25 of his comments on the Ethnographic report of 2018 ( Annexure P-23 dt.13.4.2022) also categorically suggested that after inclusion in STs list, the OBCs namely Bhat, Badhai etc. and the Scheduled Castes namely Badhi, Chanal, Chamar, Doom, Dumna, Dhaki, Hali, Koli, Lohar, Toori etc included in the generic term Hattee may be excluded from the list of OBCs and SCs respectively with respect to the Trans Giri Area of Sirmor District of Himachal Pradesh.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 34But strangely the National Commission for Scheduled Tribes, constituted under Art.338A of the Constitution of India .
to recommend measures for implementation of safeguards for the Scheduled Tribes passed a resolution in it's meeting held on 10.6.2022 recommending the inclusion of the Hattee of community of Trans Giri region of Sirmour district of Himachal Pradesh without recommending the exclusion of (i) rt dominant castes like Rajputs and Brahmins or (ii) the castes already designated as Scheduled Castes in the Constitution (Scheduled Castes) Order, 1950 or (iii) castes included in the OBC list notified by the State Government.( Annexure P-23 in CWP.NO.8301/2023 at pg.675-676).
As a body trusted by Parliament to protect the interests of the Scheduled Tribes, it prima facie ought to have recommended such exclusion of the dominant castes, Scheduled Castes and OBCs and ensured that these communities do not get benefit of reservation in the ST quota.
Why it has not chosen to do so is not forthcoming.
Moreover, it is not in dispute that previously CWP.No.5105/2022 had been filed in this Court on the same subject matter and the Union of India had asserted in it's reply filed therein (Annexure P-25 in CWP.No.8103/2023) at para 12 and 15 stated that lists of Scheduled Castes and Scheduled Tribes are mutually exclusive and that a ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 35 community at one point of time cannot figure in more than one list in a State. It contended as under:
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"12. Since the lists of Scheduled Castes (SCs) and Scheduled Tribes ( STs) are mutually exclusive, meaning thereby that a community at one point of time cannot figure in more than one list in a State, the State Government vide their letter of dt.27.7.2022 recommended that those communities which are already notified in SC list for the State of Himachal Pradesh should be retained as SCs, whereas other sub-groups of Hattee rt community in Trans-Giri area of Sirmour District , including OBC and General Category, be considered for inclusion in Schedule tribe list."
"15. In accordance with the approved modalities, the proposal was then placed before the Cabinet. On 14.9.2022, the Union Cabinet has approved the proposal to bring in a legislation to include the Hattee community of Trans Giri area of Sirmour District in ST list in respect of Himachal Pradesh, excluding those communities which are already notified as SC."
So even the Union Cabinet had suggested exclusion of Scheduled Castes, which are already notified as SC, from the Hattee community, which is to be notified as a ST.
To give effect to the Cabinet decision, a Bill namely "the Constitution ( Scheduled Tribes) Order (Third Amendment) Bill, 2022" with respect to the State of Himachal Pradesh was introduced in Lok Sabha on 9.12.2022.
The said Bill (Annexure A-1 in CWP.No.8301/2023) however makes no reference to the above mentioned Cabinet decision to exclude SC communities from the proposal for ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 36 adding Hattee Community of Trans Giri Region of Sirmour District of Himachal Pradesh. It merely states:
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"2. In the Scheduled CaScheduled Tribeehedule to the Constitution ( Scheduled Tribes) order,1950, in Part V-Himachal Pradesh, after entry 10, the following entry shall be inserted , namely:-
of "11.Hattee of Trans Giri area of Sirmour District"
But the "Statement of Objects and Reasons" contained rt in the Bill stated in para 3 as under:
"... The State Government of Himachal Pradesh has requested to include Hattee community of Trans Giri area of Sirmour District in Scheduled Tribes list excluding those communities which are already notified as Scheduled Castes for the State of Himachal Pradesh."
The Dy.Solicitor General reiterated that the SCs list and the STs list are mutually exclusive as asserted in the reply filed by the Union of India in CWP.No.5105/2022.
If so, the same communities cannot be in both lists of SCs and STs.
The non-exclusion of SCs from the Hattee community of Trans Giri Area of Sirmour District included in the STs list by virtue of the impugned law, keeps the same SCs in the STs list as well.
If both lists are mutually exclusive, then this is impermissible in law prima facie.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 37However no valid explanation was offered by the Dy.Solictor General and the Advocate General for omission to .
exclude the SC communities which figure in the SC list for the State of Himachal Pradesh inspite of the State Government, the Union Cabinet and the Bill seeking such exclusion.
of Even the Registrar General in para 25 of Annexure P-23 had suggested that rt after inclusion in STs list, the OBCs namely Bhat, Badhai etc. included in the generic term Hattee may be excluded from the list of OBCs with respect to the Trans Giri Area of Sirmour District of Himachal Pradesh.
The Dy.Solicitor General and the Advocate General have not given any satisfactory explanation for the failure to exclude the OBCs also (a) from the ST list while including some OBC communities in Hattee community or (b) from the OBC list , if they are to be included in the ST list.
Counsel for petitioners contended that there is no practice of untouchability among Scheduled Tribes and that on the contrary, untouchability is one of the main criteria for classifying a caste as a Scheduled Caste. They contended that a Scheduled Caste person can never be a Scheduled Tribe.
The learned Advocate General appearing for the State placed on record a letter dt.23.9.2023 addressed by the State Government's Tribal Development Department to the Ministry ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 38 of Tribal Affairs, Union of India, New Delhi wherein the State sought clarification from the latter as to:
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"whether communities already notified as Scheduled Castes in the Trans Giri Area of the State of Himachal Pradesh are included in this Amendment Act, the Constitution ( Scheduled Tribes) Order (Second Amendment) Act,2023 ( Act NO.14 of 2023) of as "Hattees of Trans Giri Area of Sirmour District" as published in the Gazette of India Extraordinary dt.4th August 2023 enacted by Parliament or not, for it's smooth and speedy implementation in rt public interest?"
Thereafter a reminder appears to be sent on 5.11.2023 by the State Government to the Ministry of Tribal Affairs, Union of India, and it is stated by the Advocate General that the State is still awaiting the answer to it's query.
Thereafter another communication dt.6.11.2023 was also addressed by the Tribal Development Department of the State of Himachal Pradesh to the Ministry of Tribal Affairs, Union of India, New Delhi seeking a further clarification as under:
" whether for granting the Scheduled Tribe status to people residing in this Trans Giri Area of District Sirmaur as Hattee , the cut off date for considering eligibility should be taken as the date of publication of the notification the Constitution ( Scheduled Tribes) Order (Second Amendment) Act,2023 on dated 4 th of August, 2023 or the date of publication of the notification the Constitution (Scheduled Tribes) Order, 1950 for the State of Himachal Pradesh ?"
The letter mentioned that this has become necessary as many people have settled in this area over the period of last ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 39 100 years or more and many have migrated out of this area during the same period and since there could be .
administrative and legal issues arising while implementing the notification.
It thus appears that the State Government is also having of serious doubts as to how it will deal with the implementation of the said notification.
rt But after we have reserved orders in these matters on the interim stay applications, News Paper reports dt.2.1.2024 indicated that the State Government had issued a notification on 1.1.2024 for implementation of the impugned law.
On asking of the Court, the Advocate General supplied copy of the same.
It is a letter Ref.TBD(F)4-1/2023 dt.1.1.2024 addressed by the Principal Secretary, Tribal Development department of the State of Himachal Pradesh to (a) all the Administrative Secretaries to the Govt. of Himachal Pradesh (b) The Divisional Commissioners (Shimla, Kangra and Mandi) and
(c) All the Deputy Commissioners in Himachal Pradesh. It refers to the impugned law and to the list of STs mentioned in the Constitution (Scheduled Tribes) Order, 1950 as also the inclusion of the Hattee community of Trans giri area of Sirmour District in the list of STs as per the impugned law. It ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 40 then refers to a communication dt.30.12.2023 received from the Ministry of Tribal affairs, Govt. of India allegedly .
clarifying that "Hattee" refers to permanent residents of the Trans Giri area of Sirmour District and that it excludes those communities which have been notified as Scheduled Castes in of the Trans Giri area of Sirmour District of Himachal Pradesh.
It directs that above officials to take necessary action accordingly.
rt We are baffled as to how the Ministry of Tribal Affairs, Union of India could have given such advice without Parliament making the said exclusion under clause (2) of Art.341 of the Constitution of India in the list of SCs mentioned in the Constitution (Scheduled Castes) Order,1950.
Thus all the above facts and circumstances show prima facie that there is manifest arbitrariness in including the SCs, OBC and dominant castes like Rajputs and Brahmins of Trans Gir region of Sirmour District in the list of STs notified by the Constitution ( Scheduled Tribes) Order,1950 and prima facie it appears that parliament has acted capriciously, irrationally and/or without adequate determining principle.
Balance of convenience Counsel for the petitioners contend that the SC community of the region consisting of seven castes which ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 41 include (i) Badhoi, (ii) Lohar, (iii) Dhaki/Toori/Tayal, (iv) Koli, (v) Chanal (vi) Dum and (vii) Chamar had historically .
benefited from reservations and they would suffer a significant loss, and would lose 22% exclusive reservation in employment and education and that they would also lose 15% of the of national reservation in employment and education opportunities.
rt Apart from this it is contended that the SC community has a 15% reservation under Art.243D of the Constitution in the Panchayat Raj system and this decision would effectively remove the reservations for SCs in Ward member, Pradhan, Block Development Council member and Chairperson position.
It is also contended that of the existing four constituencies of the Trans-Giri region, two were reserved for the Scheduled Caste community on the basis of existence of the SC Community population in Trans Giri, and under Art.332 of the Constitution, these two reserved seats in the Trans Giri region's Legislative assembly (MLA) which were earmarked for the SC community would now be eliminated.
These concerns of the SC community as highlighted by the Senior Counsel for the petitioner in CWP.No.8103/2023, cannot be ignored.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 42The Senior Counsel for the petitioner in CWP.No.9528/2023 highlighted that the Hattees belong to the .
advanced class and do not fulfil the traits/characteristics of Scheduled Tribes and as such their addition as one of the Scheduled Tribes, will affect benefits of reservation extended of to members of the petitioner association being Scheduled Tribes by virtue of the Scheduled Caste and Scheduled Tribes rt Orders ( Amendment) Act,1956.
He too highlighted that granting Scheduled Tribe status to dominant castes denies tribal population of the State the constitutional right of equal participation in the society, results in dilution of the SC/ST (Prevention of Atrocities) Act,1989 and that it is unfair to expect the Scheduled Tribe communities, who had been practising totally different lifestyle from the forward castes, to compete with the latter.
According to him, such reservation granted to dominant upper castes is against the constitutional principle of equality.
He also submitted that no quantifiable data regarding backwardness of Hattee community has been provided by the Government and the ethnographic report is silent on the aspect.
The Scheduled Tribe community's concerns as highlighted by the petitioner in CWP.No.9528/2023 also appear to be genuine and cannot be ignored.
::: Downloaded on - 04/01/2024 20:38:22 :::CIS 43Thus we are satisfied that balance of convenience exists in favor of granting interim relief in CWP.No.s 8301/2023 and .
CWP.No.9528/2023.
Irreparable injury We are also of the view that if interim orders are not of granted, tens of thousands of ST certificates would be granted, reversal of which would be difficult. A fait accompli would rt happen because final hearing of the Writ Petitions cannot be done without pleadings being complete, and since this Court is closed for the winter break till 25.2.2024, there is a possibility of these CWPs being practically rendered infructuous.
CONCLUSION For the aforesaid reasons, prima facie there appears to be manifest arbitrariness and glaring unconstitutionality in the impugned law. There exists balance of convenience in favour of petitioners in CWP.NO.8103/2023 and CWP.No.9528/2023, and irreparable injury is likely to be caused if the interim relief is not granted, CMP.No15611/2023 in CWP.NO.8103/2023 and CMP.NO17653 /2023 in CWP.No.9528/2023 are allowed and the implementation of the Constitution (Scheduled Tribes) Orders ( Second Amendment) Act,2023 as well as the Letter TBD(F) 4-1 /2023 dt.1.1.2024 of the Tribal Development ::: Downloaded on - 04/01/2024 20:38:22 :::CIS 44 Department of the Govt. of Himachal Pradesh are stayed till 18.03.2024.
.
Consequently interim applications in all other CWPs mentioned in this order are dismissed.
We hasten to add that the observations/findings recorded of are only prima facie and tentative and they shall not have any bearing at the final hearing of these matters.
rt List on 18.03.2024 for filing of replies by the respondents.
(JUSTICE M.S RAMACHANDRA RAO) CHIEF JUSTICE (JYOTSNA REWAL DUA) January 04, 2023. JUDGE ::: Downloaded on - 04/01/2024 20:38:22 :::CIS