Kalbari Educated Unemployed Youth Society and Anr v. The Union of India and 3 Ors

JUDGMENT & ORDER (ORAL)

Date : 01-03-2023 (A.M. Bujor Barua, J)

Heard Mr. BC Das, learned senior counsel assisted by Mr. S Chauhan, learned counsel for the petitioners. Also heard Mr. R Dhar, learned Additional Senior Government Advocate for the respondents in the WPT and BC Department of the Government of Assam as well as Ms. Binita Pegu, IAS, Secretary to the Government of Assam in the Tribal Affair (P) Department is personally present as per the requirement of the order dated 17.02.2023 and Mr. P Hazarika, learned counsel for the respondent no. 4 being the All Assam Tribal Sangha.

¶2It is taken note that the WPT and BC Department of the Government of Assam has been renamed as the Tribal Affair (P) Department.

¶3This PIL petition is instituted by the Kalbari Educated Unemployed Youth Society and Page No.# 4/7 another assailing the notification dated 22.06.2009 of the Secretary to the Government of Assam in the WPT and BC Department by which it was provided that the Governor of Assam is pleased to authorize the President/Vice President of All Assam Tribal Sangha and District Unit of Assam Tribal Sangha to identify the status of Scheduled Tribes Communities and issue certificates to the Scheduled Tribes (P) and Scheduled Tribes (H) in Assam within the jurisdiction of their respective Districts and Sub-Divisions, temporarily, till finalization of amendment of Rule 3 (1)(b) of the Assam SC and ST (reservation of vacancies in services and posts) Rules, 1983 (in short, the Rules of 1983). The petitioner also assails the communication dated 05.06.2018 from the Commissioner and Secretary to the Government of Assam in the WPT and BC Department made to all the Deputy Commissioners and Sub-Divisional Officers (Civil) in the State of Assam as regards issuing Scheduled Tribes (Plain) certificates to the 'Sarania Kachari' community as 'Kachari' tribe in Assam.

¶4As regards the notification dated 22.06.2009 by which the Governor of Assam was pleased to authorize the President/Vice President of All Assam Tribal Sangha and District Units of Assam Tribal Sangha to identify the status of Scheduled Tribes Communities and issue certificates to the Scheduled Tribes (P) [in short, ST(P)] and Scheduled Tribes (H) [in short, ST(H)] in Assam, it is stated by Ms. Binita Pegu, the Secretary to the Government of Assam in the Tribal Affair (P) Department that the said notification had in the meantime been withdrawn and it is not having its force.

¶5In view of such statement, we are not required to adjudicate on the acceptability of the notification dated 22.06.2009 of the Secretary to the Government of Assam in the WPT and BC Department. But as an issue had been raised by Mr. BC Das, learned senior counsel for the petitioners by referring to the judgment of the Supreme Court rendered in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development and others reported in (1994) 6 SCC 241 wherein in paragraph 13 a procedure had been provided as regards issuing the social status certificates, their scrutiny and approval, we also look into the contents otherwise of the notification dated 22.06.2009. In Clause 1 of paragraph 13 of the judgment rendered in Kumari Madhuri (supra) it had been provided that the application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Page No.# 5/7 Taluk or Mandal level.

¶6The purport of the said provision of the Supreme Court in paragraph 13 of the judgment rendered in Kumari Madhuri (supra) would be that the application for grant of social status certificates are to made either to the Deputy Commissioner or Deputy Collector or the Revenue Sub-Divisional Officer.

¶7It is stated that although the notification dated 22.06.2009 had authorized the President/Vice President of All Assam Tribal Sangha and District Unit of Assam Tribal Sangha to identify the status of the Scheduled Tribes communities and to issue certificates to ST (P) and ST (H) in Assam but the respondents in the WPT and BC Department, which is subsequently renamed as Tribal Affair (P) Department had sought to involve the All Assam Tribal Sangha in the matter of issuing the certificates inasmuch as the All Assam Tribal Sangha have better knowledge from the field level as to which person may belong to ST (P) and ST (H) communities and therefore, their expert knowledge in the field is being utilized in the nature of a preliminary enquiry in the process of issuing certificates.

¶8Considering the aforesaid clarification given by the WPT and BC Department, which is subsequently being renamed as Tribal Affair (P) Department, we are of the view that the said process, if adopted, would not be contrary to any provisions of any other law, if the exercise is limited to the extent of making a preliminary enquiry as to which person would belong to the Tribal communities for being entitled to a certificate of their status but at the same time we also provide that the contents of the preliminary enquiry that may be made through the All Assam Tribal Sangha shall not be construed to be the final material for the Deputy Commissioner or Deputy Collector or the Revenue Sub-Divisional Officer for issuing the certificates and such authorities shall also make their own application of mind based upon the materials that may be available for issuing the certificates.

¶9As regards the other notification dated 05.06.2018 by which the Commissioner and Secretary to the Government of Assam in the WPT and BC Department had provided that all the persons belonging to 'Sarania Kachari' community will be issued ST (P) certificates under the sub tribe 'Kachari', the Secretary to the Government of Assam in the Tribal Affair (P) Department has made a statement before the Court that the said communication in the Page No.# 6/7 meantime had also been withdrawn and it will not have its effect under the law any further. As the communication providing that the 'Sarania Kachari' community will also be issued the ST(P) certificate had been withdrawn, we are not required to adjudicate the matter any further. But however, we provide that as the said communication was withdrawn during the course of the proceeding in the present writ petition, may be because of certain questions being put by the Court to the Department, we further clarify that if the Government of Assam intends to also include the 'Sarania Kachari' community within the Scheduled Tribe communities, the proceeding in this writ petition shall not be a bar on the authorities, provided the authorities follow the due procedure of law as required by the Constitution of India to include any community or tribe within the Scheduled Tribes.

¶10In WP(C) No. 4808/2018 the same notifications dated 22.06.2009 and 05.06.2018 are also assailed and therefore, we propose to pass the same order as passed in the PIL No. 30/2019.

¶11We have also taken note that in the PIL petition the amendment to Rule 3 (1) (b) of the Rules of 1983 had also been assailed. By the said amendment of the provisions of Rule 3

(1)(b) of the Rules of 1983, certain provisions were made that the MLAs, MPs and some other authorities would also be entitled to issue the status certificates of the caste or tribe who may claim for it. As the provisions under Rule 3(1)(b) of the Rules of 1983 are in the nature of authorizing an authority other than the Deputy Commissioner, the Deputy Collector or the Revenue Sub-Divisional Officer to also issue the status certificates regarding caste and tribe, we provide that without interfering with the said provision, the provisions of Rule 3(1)(b) of the Rules of 1983 are read down to mean that the said authorities referred therein may also have a recommendatory role regarding the identification of the persons to whom the social status certificates of the caste and tribe are being issued, but not the final authority to issue the certificates, on the same terms as already provided in this order in respect of the All Assam Tribal Sangha.

¶12A copy of the communication of the Joint Secretary to the Government of Assam in the Department of Tribal Affairs (Plain) made to the learned Standing Counsel for the Department of Tribal Affairs (Plain) regarding the withdrawal of the communication dated 05.06.2018 is kept on the record. Page No.# 7/7

With the aforesaid clarifications and observations, both the PIL and the writ petition, stand disposed of.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010111752019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oPIL/30/2019ooooooooo KALBARIoEDUCATEDoUNEMPLOYEDoYOUTHoSOCIETYoANDoANR.o REPRESENTEDoBYoITSoPRESIDENToSRIoRANJIToBASUMATARY,oAGEDo36o YEARS,oS/-oGOLAPoBASUMATARY,oVILLAGEoANDoP.O.-oKALBARI,oP.S.o TAMULPUR,oDIST.-oBAKSA,oBTAD,oASSAM,oPIN-o781367. 2:oSUBESWARoSWARGIARY oS/OoSITAoRAMoSWARGIARY oSECRETARYoOFoKALBARIoEDUCATEDoUNEMPLOYEDoYOUTHoSOCIETY oVILLAGEoANDoP.O.-oKALBARI oP.S.oTAMULPUR oDIST.-oBAKSA oBTAD oASSAM oPIN-o781367o VERSUSo THEoUNIONoOFoINDIAoANDo3oORS.o REPRESENTEDoBYoTHEoSECRETARY,oMINISTRYoOFoTRIBALoAFFAIRS,oNEWo DELHI-o110001. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCHIEFoSECRETARY oDISPUR oGUWAHATI-o781006. 3:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFo ASSAM oWPToANDoBCoDEPARTMENT oDISPUR oGUWAHATI-o781006. 4:THEoALLoASSAMoTRIBALoSANGHA oREPRESENTEDoBYoITSoGENERALoSECRETARY Page No.# 2/7 SRI ADITYA KHAKHLARI TRIBAL REST HOUSE SOLAPAR P.O. AND P.S. PALTAN BAZAR GUWAHATI- 781008 Advocate for the Petitioner : MR. B C DAS Advocate for the Respondent : ASSTT.S.G.I. Linked Case : WP(C)/4840/2018 JANAKLAL BASUMATARY AND ANR. S/O- MRIGENDRA NATH BASUMATARY R/O- VILL- BAGANSALI P.O AND P.S- KOKRAJHAR DIST- KOKRAJHAR ASSAM PIN- 783370 2: DAORAO DEKHREB NARZARY S/O- LATE MAHESWAR NARZARY VILL- MAIBONGRAGAT KOKRAJHAR P.O AND P.S- KOKRAJHAR DIST- KOKRAJHAR BTAD ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REP. BY ITS SECRETARY MIN OF TRIBAL AFFAIRS NEW DELHI- 09 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY WP(T) AND BC DEPTT DISPUR GUWAHATI- 06 3:THE ALL ASSAM TRIBAL SANGHA REP. BY ITS PRESIDENT TRIBAL REST HOUSE Page No.# 3/7 SOLARPAR PALTAN BAZAR GUWAHATI- 08 4:THE REGISTRAR GENERAL OF INDIA 2A/MANSINGH ROAD NEW DELHI- 11 5:THE NATIONAL COMMISSION FOR SCHEDULE TRIBE REP. BY THE REGISTRAR LOK NAYAK BHAWAN KHAN MARKET NEW DELHI- 110003 6:NABA KUMAR SARANIA S/O. LATE LAKHI KANTA SARANIA VILL. DIGHILIPAR P.O. AND P.S TAMULPUR DIST. BAKSA (BTC) ASSAM. ------------ Advocate for : MR. B B NARZARY Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 5 ORS BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN