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2006 DIGILAW 411 (CAL)

RANCHI ASSOCIATION v. UNION OF INDIA

2006-07-10

TAPEN SEN

body2006
Before Mr. Justice Tapen Sen ( 1 ) THE petitioner being a Registered Association with its aims and objectives of uplifting and developing the social, economic and educational status of the Ranchi Adivasis as well as of the pther Scheduled Tribes who have migrated from the mainland and settled in these Islands, seeks the following relief (s) : - (a) For a direction upon the respondents to implement the judgment of the Hon'ble Supreme Court of India delivered in the case of S. Pushpa and Ors. v. Sivachanmugavelu and Ors. , reported in 2005 (3) SCC page 1 ; (b) For a direction upon the respondents to consider the scheduled Tribes who have migrated from mainland and settled in these Islands against Reserved Posts/services earmarked for the scheduled Tribes in the A and N Administration; (c) For a direction upon the respondents to consider these tribes against un-availed reserved seats of Scheduled Tribes in various Technical/non-technical education in the mainland; (d) For a direction upon the respondents to issue Caste certificate to these migrated Tribes; and (e) For any other order/orders. ( 2 ) FROM the pleadings as well as from the various documents that have been appended to this writ petition, the facts, as gathered are that as the Indian Jail Committee of 1919-20 advised the Government of India to abolish the penal settlement in the Andamans altogether, the Provincial governments were asked to stop deportation of the prisoners to the andamans. The Administration of these Islands felt the shortage of laborers for clearing the jungles. Since then the Adivasis of Chhotanagpur, namely, the Uraons, the Mundas and the Kharias were recruited by the Government. They are known as the "ranchies" in these Islands and are also referred to as the "tapuwalas" in their parent States of Bihar, Madhya Pradesh and orissa. ( 3 ) BECAUSE of their close Association with forest lands in their own state of origin, these Adivasis did not feel any difficulty in working in the forests of the Islands. When the Japanese occupied these Islands in the year 1992, about 900 such Tribals namely the "ranchies" were already working here in the Mills, Aerodrome, reconstruction work, timber and agriculture works. A few of them had taken to cultivation also. ( 4 ) AT the conclusion of the World War-II, the A and N Administration required huge manpower for reconstruction. When the Japanese occupied these Islands in the year 1992, about 900 such Tribals namely the "ranchies" were already working here in the Mills, Aerodrome, reconstruction work, timber and agriculture works. A few of them had taken to cultivation also. ( 4 ) AT the conclusion of the World War-II, the A and N Administration required huge manpower for reconstruction. It is further gathered that these "ranchies" were brought for the development of the Islands and, as stated in their representation addressed to Smt. Indira Gandhi, they toiled and sweated to clear the forests from the South to the North so as to facilitate the settlement of displaced persons from Bangladesh as well as the Ex-servicemen in the Great Nicobar. It was stated in the said representation that without the help of the "ranchies", the progress of these Islands would not have been to the extent found after independence. It was further stated that during 1959-60, the A and N Administration settled about 200 "ranchies" in Baratang and Mayabunder and by dint of their hard labor, they were able to produce much more paddy compared to the other settlers. ( 5 ) HOWEVER, these Adivasis, namely the "uraons", the "mundas" and the "kharias" are not recognized as Scheduled Tribes in these Islands and the Employment Exchange, A and N Islands does not register their names as Scheduled Tribes. Their further grievance was that even in the face of valid certificates their names could not find place in the Reserved vacancies/quotas either for employment or seats for higher studies. ( 6 ) IN the background of the aforementioned facts and circumstances, the Association through its President, submitted a representation to the late Prime-Minister Smt. Indira Gandhi on her visit to these Islands and drew her attention to the following five points which are quoted below : - " (1) The Govt. has settled us in these Islands under various schemes. We are afraid our identity will be obliterated in the course of time. We demand that our identity should be streamlined. Because of our settlement in these Islands, its Govt. machinery should be competent to issue us tribal certificates instead of he State of origin. (2) A and N Administration as well as Central Institutions do not recognize us as Schedule Tribes for the purpose of employment even though the candidates possess valid certificates issued by the competent authorities. Because of our settlement in these Islands, its Govt. machinery should be competent to issue us tribal certificates instead of he State of origin. (2) A and N Administration as well as Central Institutions do not recognize us as Schedule Tribes for the purpose of employment even though the candidates possess valid certificates issued by the competent authorities. We should be made eligible for appointment against the reserved vacancies which remain vacant in these Islands indefinitely as indigenous tribals are not readily available. (3) We are not registered as Scheduled Tribes in the employment Exchange, A and N, Islands even though we produce tribal certificate issued by the State of origin. (4) We are to compete in the open market in order to qualify for seats for higher studies in Engineering Medicine etc. etc. because we are not identified as weaker sections of the Indian Society. (5) For their economic uplift, they should be integrated on within the purview of the Schemes already chalked out by the Govt. as the Ranchi Adivasis presently in these Islands are isolated and deprived of all the benefits of the Tribal Welfare Schemes. " [quoted from the Representation] ( 7 ) IN response, the Assistant Secretary, Chief Commissioner's secretariat, A and N Administration wrote a letter on 27. 6. 1981 vide annexure-E, wherein while referring to the aforementioned representation, it was stated that the question of declaration of various Scheduled Tribes of the mainland as well as Scheduled Castes in these Islands had been considered by the Government of India, but the same could not be accepted as the "criteria for scheduling was not satisfied" by any group or class in this territory and therefore, the request for declaring the Ranchi Adivasis as Scheduled Castes of the Union Territory of the Andaman and Nicobar islands could not be acceded to. ( 8 ) THEREAFTER, on 14. 6. 1982 the petitioner once again wrote to the secretary to the Government of India, Ministry of Home Affairs requesting for a direction upon the A and N Administration as well as upon the employment Exchange to register the mainland Tribals who were locally available and who were in possession of valid Tribal Certificates for purposes of filling up the Class-Ill and IV posts by such local candidates. This demand was made vide letter dated 14. 6. 1982 as contained in annexure-D. ( 9 ) THEREAFTER, on 22. This demand was made vide letter dated 14. 6. 1982 as contained in annexure-D. ( 9 ) THEREAFTER, on 22. 7. 1982, the Assistant Commissioner (TW), a and N Administration issued a letter addressed to all the Heads of departments/offices indicating inter alia, that by earlier Letters dated 5. 10. 1981 and 6. 2. 1982, it had been clarified that the reserved vacancies can be filled up by appointing non-local Tribals candidates in cases where local Tribals candidates were not available. The Assistant Commissioner (TW) therefore requested all the Heads of Departments/offices that such instructions issued by Letters dated 5. 10. 1981 and 6. 2. 1982 be followed strictly in future. ( 10 ) THE aforementioned Letter dated 6. 2. 1982 has been brought on record (running page 33) and upon a perusal thereof it is evident that the same was issued by the Assistant Commissioner (TW) wherein, while referred to an earlier D. O. Letter dated 5. 10. 1981 of the Joint Secretary, ministry of Home Affairs, New Delhi, instructions were given relating to filling up of all the posts reserved for Scheduled Tribes and Scheduled castes. ( 11 ) THE aforementioned Letter dated 5. 10. 1981 is at running page 34 of this writ petition. Upon reading the contents thereof it is evident that the same was addressed to one B. K. Singh, Chief Secretary, A and N administration, Port Blair, stating inter alia therein that according to the available figures of appointments under the A and N Administration there should have been more than 3000 Scheduled Tribes employees in Group c and D posts but it was only 269 as on 1. 1. 1980. It was stated that the earlier instructions issued to all the Heads of Departments/offices to follow reservation orders were not being followed and therefore, it was requested that the orders contained in the Brochures on Reservation for Scheduled tribes and Scheduled Castes were to be followed scrupulously by the administration. ( 12 ) IT was also stated as follows : - ". . . . . . . . . . your particular attention is invited to Chapter-8 and the various orders cited at SI. No. 8 of the Index to Part-Ill of the aforesaid brochure which require the reserved vacancies to be widely circulated through Central Employment Exchange/d. A. V. P. etc. . . . . . . . . . your particular attention is invited to Chapter-8 and the various orders cited at SI. No. 8 of the Index to Part-Ill of the aforesaid brochure which require the reserved vacancies to be widely circulated through Central Employment Exchange/d. A. V. P. etc. when local Employment Exchange is not in a position to recommend sufficient number of candidates for such posts. Although appointments to Group 'c' and 'd' posts, under the Administration are to be made from among local candidates, according to the executive instructions issued by this Ministry these orders will not be attracted where reserved vacancies are filled by suitable nonlocal scheduled Tribes candidates as such appointments are made in pursuance of the reservation orders which are of a statutory nature, issued under Articles 16 (4) and 335 of the Constitution". ( 13 ) THEREAFTER on 25. 8. 1982, the Deputy Secretary, Government of india wrote a letter addressed to the President of the petitioner-Association wherein while referring to their representation dated 14. 6. 1982, he stated that the matter had been considered by the Ministry and on the directions of the Government, the A and N Administration had since issued instructions to all the Head of Departments/offices, directing them to strictly follow the orders of the Government relating to filling up of the posts reserved for scheduled Castes and Scheduled Tribes. It was also stated that the employment Exchange, Port Blair had been directed to register all such candidates who were able to produce Tribal Certificates issued by the competent authority in the prescribed forms with a view to provide them necessary employment against the posts reserved for them in the different departments of the A and N Administration. The photocopy of the aforementioned Letter dated 25. 8. 1982 is Annexure-E appended to this writ petition. ( 14 ) ON 17. 11. 1983, the Assistant Commissioner (TW), A and N administration issued a Letter to all Head of Departments/offices wherein they sought for information regarding following four points : - 1. The position of recruitment/promotion against reserved vacancies of 16% of S. Ts in respect of posts under categories A, B, c and D respectively. 2. The shortfall, if any. 3. Measures proposed to be taken for the same. 4. Dereservation wherever necessary. The position of recruitment/promotion against reserved vacancies of 16% of S. Ts in respect of posts under categories A, B, c and D respectively. 2. The shortfall, if any. 3. Measures proposed to be taken for the same. 4. Dereservation wherever necessary. ( 15 ) IT appears that similar representation was once again addressed to the Prime Minister of India, namely, late Shri Rajiv Gandhi when he came to these Islands and the said representation was given by a forwarding Letter dated 12. 1. 1987 (Annexure-G ). ( 16 ) IN reply to the aforementioned representation, the petitioner received a Letter dated 12/13th March, 1987 from the Secretary, A and N administration Secretariat vide Annexure-H wherein it was inter alia stated as follows : - "2. No group of tribal people except the indigenous tribal people are recognised as Scheduled Tribes in relation to this Union territory. Further no Scheduled Caste/scheduled Tribe person on migration from the State of his origin to another State loses his status as Scheduled Caste/scheduled Tribe and he continues to enjoy the concessions/benefits admissible to the Scheduled Tribes in the State of his origin. 3. The Ranchi Adivasis are, however, receiving fair treatment in matters of service, land, education etc. and no discrimination is being shown to them in these Islands. " ( 17 ) THEREAFTER on 29. 8,1989, vide Annexure-H, the Assistant secretary (Peri) of the A and N Administration Secretariat wrote a Letter addressed to all Heads of Departments/offices and all Assistant secretaries/branch Officers stating that the Government of India had given concurrence relaxing the conditions laid down in an earlier Office memorandum dated 14. 2. 1984. ( 18 ) ACCORDING to the learned Counsel for the petitioner, all these letters (especially Annexures-D and E) were sufficient to indicate that the government had already taken a conscious decision to relax the Rules in matters relating to employment of only local candidates in the Group- "c" and "d" posts and therefore, there should be no difficulty in issuing appropriate directions to them in terms prayed for in this writ petition. ( 19 ) I am afraid I am unable to accept such a submission on behalf of the petitioner and the same must be rejected for two reasons. Firstly , all these letters as contained in Annexures-D and E (at pages 33 to 35)are of the years 1981/1982. ( 19 ) I am afraid I am unable to accept such a submission on behalf of the petitioner and the same must be rejected for two reasons. Firstly , all these letters as contained in Annexures-D and E (at pages 33 to 35)are of the years 1981/1982. Almost twenty-four years have gone by and we find that till today there is no Presidential Order including the members of the petitioner-Association. Moreover, the petitioner virtually wants implementation of policies taken more than 2 (two) decades ago. Secondly, if the language of the Letter dated 25. 8. 1982 (Annexure-E) is carefully read, it will be evident that directions were given to the Employment exchange to register all such candidates who were able to produce valid tribal Certificates. ( 20 ) CAN such a letter be understood to mean that upon migration, the tribals of one State could be registered as Tribals in the State/ut to which they have migrated? ( 21 ) THE answer to such a question would be an emphatic no because articles 341 and 342 of the Constitution of India confers an exclusive prerogative upon the President of India alone to specify, by a Notification and after consultation with the Governor, the Castes/races or Tribes who are to be Scheduled for purposes of inclusion in the Constitution as scheduled Castes/tribes/communities. Such an exclusive power cannot be wrested away by the executive without following the procedure laid down under the Constitution. That apart, the mere fact that more than 2 (two) decades have gone by is itself a pointer to show that the President of India has not, till date, notified the "ranchies" as Scheduled Tribes or scheduled Castes for the Union Territories of Andaman and Nicobar Islands. ( 22 ) CAN the petitioner therefore, take recourse to a proceeding under articles 226 or 227 of the Constitution of India and pray, inter alia, for a direction upon the respondents to consider the Scheduled Tribes who have migrated from the mainland and settled in these Islands against reserved posts/vacancies earmarked for the Scheduled Tribes of the A and n Islands ? ( 23 ) THE answer to such a question must once again be answered in the negative. In the case of Nityanand Sharma and Anr. ( 23 ) THE answer to such a question must once again be answered in the negative. In the case of Nityanand Sharma and Anr. v. The State of Bihar, reported in 1996 (3) SCC 576 it has been held that it is the constitutional mandate that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by the President, after consultation with the Governor in the public notification, will be Scheduled tribes subject to the law made by the Parliament alone, which may, by law, include in or exclude from the list of Scheduled Tribes specified by the President. Thereafter, it cannot be varied except by Parliament. ( 24 ) THE Supreme Court, in the same judgment has also observed in paragraph-15 that "it is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the order or include in or substitute any caste/tribe etc. " ( 25 ) THUS, any order passed in this case giving Directions in the nature prayed for would therefore have the effect of a Judicial intervention declaring a migrant Tribe from another State to be recognized as Scheduled tribes in the territory where they have settled-notwithstanding there being no Presidential Order to that effect. Such an order cannot therefore, be passed. ( 26 ) LEARNED Counsel for the petitioner then heavily relied upon the judgment passed by the Hon'ble Supreme Court of India in the case of s. Pushpa v. Sivachanmugsvelu, reported in 2005 (3) SCC 1 , in support of his contention that appointment and selection of migrant Scheduled Caste candidates against the quota reserved for Scheduled Castes is neither unconstitutional nor invalid. He further submits that Paragraph-21 of the aforementioned judgment clearly indicates that Article 16 (4) of the constitution of India is not controlled by the Presidential Order issued under Article 341 (1) or 342 (1) in the sense that reservation in the matter of appointment of posts may be made in a State or Union Territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or UT. He further submits that Article 16 (4) of the Constitution of India does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order would alone be recognized as backward Class as citizens and none else. ( 27 ) I am afraid, this judgment of the Apex Court does not at all help the petitioner. In Pushpa's case (supra), the Apex Court was concerned with the question as to whether selection and appointment already made of Migrant Scheduled Caste candidates of other States against the Quota reserved for the Scheduled Caste candidates in the Union Territory of pondicherry, was legal and valid? In that case, the Government of pondicherry had throughout been proceeding on the basis that being a u. T. , all orders regarding reservation for SC/st in respect of posts/services under the Central Govt. were applicable to posts/services under the pondicherry Administration. Since all SC/st candidates which had been recognized as such under the orders issued by the President from time to time irrespective of the State / U. T. in relation to which the particular Castes/ tribes had been recognized as SC/st, they were therefore held eligible and it was ultimately observed in the said judgment that the U. T. of pondicherry having adopted a policy of the Central Govt. whereby all SC/ st candidates, irrespective of their State, were eligible. ( 28 ) IN the instant case, there is nothing to prove that the U. T. of a and N Administration had throughout been proceeding that all orders regarding reservation for the SC/st in respect of posts/services under the Central Govt. were applicable under the A and N Administration. It is nobody's case that the A and N Administration has repeatedly been appointing the migrant ST/sc candidates against the quota reserved for the ST/sc candidates of these Islands. were applicable under the A and N Administration. It is nobody's case that the A and N Administration has repeatedly been appointing the migrant ST/sc candidates against the quota reserved for the ST/sc candidates of these Islands. ( 29 ) THAT apart, in the same judgment of Pushpa's case (supra) the hon'ble Supreme Court of India has held in Paragraph-20 that for purposes of identification and/or ascertainment of SC/st population, the "exercise has to be done strictly in accordance with the Presidential Order and a migrant Scheduled Caste of another State cannot be taken into consideration otherwise it may affect the number of seats which have to be reserved in the House of the People or Legislative Assembly. " ( 30 ) THE learned Counsel for the petitioner next relied upon the case of Chandigarh Administration and Anr. v. Surinder Kumar and Ors. , reported in AIR 2004 SC 992 in support of his contention that the benefit of appointment against a reserved post under the A and N Administration should be extended to candidates who have migrated from other States. ( 31 ) I am afraid this judgment cannot also render any assistance to the petitioner because from Paragraph-12 of the said judgment, it is clear that in the case before the Apex Court, there were Letters/circulars which specifically permitted that a recognized Scheduled Caste/scheduled Tribe of any other State or Union Territory would be entitled to the benefits and facilities provided for Scheduled Castes/scheduled Tribes in the services of the Union Territory of Chandigarh. ( 32 ) NO such specific letter has been brought on record in the instant case of the petitioners save and except Annexures-D and E which are of the years 1981/1982. As already stated above, a letter of 1982 and that too, a letter of the Executive cannot be said to be competent in the face of Articles 341 and 342 of the Constitution of India. That apart, the petitioner has not been able to show that any posts were reserved for the Uraons, Mundas or the Kharias in the A and N Administration. ( 33 ) IN the Affidavit-in-Opposition, the respondents have brought on record the Constitution (A and N Islands) Scheduled Tribes Order, 1959, which has been promulgated by the Hon'ble President of India in exercise of his powers conferred under Article 342 (1) of the Constitution of India. ( 33 ) IN the Affidavit-in-Opposition, the respondents have brought on record the Constitution (A and N Islands) Scheduled Tribes Order, 1959, which has been promulgated by the Hon'ble President of India in exercise of his powers conferred under Article 342 (1) of the Constitution of India. In the said order, the Tribes or Tribal Communities who have been included in the Schedule for the Andaman Islands are : - (a) The Andamanese (including Chariar or Chari, Kora, Tabo or Bo, Yere, Kede, Bea, Balawa, Bojigiyab, Juwai and Kol) ; (b) Jarawas ; (c) Onges ; and (d) Sentinelese. For the Nicobar Islands, they are: (a) The Nicoberese and (b) The Shompens. ( 34 ) NONE of the "ranchies" nor any other Tribes who have migrated from the mainland have been Included in the abovementioned Presidential order. ( 35 ) UPON a perusal of the aforementioned facts and circumstances of this case, it is evident that the petitioner-Association represents the uraons, the Mundas and the Kharias of Chhotanagpur (now in the State of Jharkhand and which was a part of the erstwhile unified Bihar prior to its reorganization ). They also claim to represent the other Scheduled Tribes who have migrated from the mainland. In view of the foregoing reasons, they cannot claim that they must be considered as Tribes of the A and N islands unless and until they are included in the Presidential Order. ( 36 ) SINCE neither the Uraons nor the Mundas nor the Kharias nor the other migrants Scheduled Tribes from the mainland have been included in the Constitution (Andaman and Nicobar Islands) Scheduled Tribes order, 1959, they therefore, cannot be treated to be Scheduled Tribes in the Union Territory of A and N Islands unless and until a Presidential Order is issued in terms of Articles 341 and 342 of the Constitution of India. Consequently, none of the reliefs sought for by the petitioner can be granted through the medium of this writ petition which is found to be devoid of merit. It is accordingly dismissed. There shall however, be no order as to costs.