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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF , , AND )

WP(C) No.2317 of 2011

Sri Dhaniram Terang, S/o Sri Dili Ram Terang, R/O Village-Shamukjuli, P.O.-Tinsukia, P.S.- Biswanath Chariali, Dist.-Sonitpur

..… Petitioner

-Versus-

(1) The State of Assam, Represented by the Chief Secretary to the Government of Assam, Dispur, Ghy-6

and 8 (eight) Others ..… Respondents

BEFORE

THE HON’BLE MR. JUSTICE NELSON SAILO

For the Petitioner: Mr. S. Chakraborty …… Advocate. For the respondents: Mr. M.R. Adhikari ...... G.A. Assam Mr. U.K. Nair ...... SC, GHC, Mr. M.P. Sarma, Mr. M.M. Deka ...... Advocate.

Date of Hearing & Judgement : 11th August, 2017

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JUDGMENT AND ORDER (ORAL)

Heard Mr. S. Chakraborty, the learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, the learned Government Advocate, Assam, for the respondent Nos. 1, 2, 3 and 5 and Mr. M.P. Sarma who appears on behalf of Mr. U.K. Nair, the learned Standing Counsel, GHC, for the respondent Nos. 4 and 6. Mr. M.M. Deka, the learned counsel appears for the respondent No.9. None appears for the respondent Nos. 7 and 8 despite service of notice.

2] The case of the writ petitioner is that the Chief Judicial Magistrate, Dhubri, on 03.08.2010 (Annexure-II) requisitioned eligible applicants from the Assistant Director of Employment, District Employment Exchange Officer, Dhubri, for filling up the post of 1 LD Assistant reserved for ST(H) amongst other posts. In response to the communication, the Employment Exchange sponsored the application of the petitioner as well as the respondent No.9 besides another candidates vide communication dated 17.08.2010 (Annexure-III). The candidates were called for the written test examination on 05.09.2010 and thereafter, they were called for viva-voce test to be held on 19.12.2010.

3] Although the petitioner and the respondent No.9 appeared for the viva- voce test, the 3rd candidate did not participate. During the process, the petitioner came to learn that the respondent No.9 did not belong to the reserved category of ST(H) since the tribe to which he belonged i.e. Hajong community was recognized as a Scheduled Tribe and he would be in the category of ST(P) considering his place of residence. The petitioner submitted his representation to the respondents in the form of a notice through his legal counsel on 22.12.2010. However, since the respondent authorities did not make any response, the petitioner has filed the instant writ petition.

4] It may be noticed that this Court while issuing notice of motion on 16.05.2011 observed that the appointment made to the post in question would be subject to the outcome of the writ petition.

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5] Mr. S. Chakraborty, the learned counsel for the petitioner submits that the petitioner belongs to the Karbi(Mikir) community and the community is recognized as ST(Hill) as the petitioner resides in Biswanath Chariali in the district of Sonitpur. The petitioner was in fact issued a ST(H) certificate by the appropriate authority on 11.08.1995 (Annexure-I). He further submits that as per the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002, the list of Scheduled Castes and Scheduled Tribes has been provided and the revised list was communicated to all concerned by the Department of Welfare of Plain, Tribes and Backward Classes, the Government of on 01.04.2003 (Annexure-VIII). In the said list, the community of Hajong is recognized as Scheduled Tribe both in the hill districts as well as in the plains, whereas, Mikir(Karbi) community is only recognized in the hills district. The State Government in order to address the up-liftman of economic, educational and employment benefits to Scheduled Tribes residing in plains has come up with a policy decision which has been circulated by the Department of Welfare of Plains, Tribes and Backward Classes on 24.12.1982 (Annexure-VII).

6] By referring to the said policy of the State Government, Mr. S. Chakraborty submits that the tribes included in the Scheduled Tribes list for the hills district but residing permanently in the plain districts have been called as ‘Hills Tribes in Plains’ and for giving the economic, educational and employment benefits to such category, they will be considered against the quotas, if any, reserved for Scheduled Tribes ‘Hills’. The post sought to be filled up in the establishment of the Chief Judicial Magistrate, Dhubri, having been reserved for ST(H), the petitioner is clearly an eligible candidate for the post. However, the respondent No.9 having reside in the plain district would have to be categorized as ST(P). Since the community of Hajong as per the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 has been recognized as Scheduled Tribes for both the Hills districts and the Plains, in view of the policy decision taken by the State Government, the respondent No.9 would be a ST(P) category considering the fact that he resides in the Plains. Therefore, he is not eligible to participate in the selection process for the post which is specifically earmarked for ST(H). Mr. S. Chakraborty by referring to the caste certificate issued to the respondent No.9 submits that the same has only been issued wrongly against

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and the policy decision of the State Government. He submits that a perusal of the said certificate clearly reflects that the certificate is meant for ST(P). He further submits that the certificate is dated 27.08.2010 which has only been issued wrongly and after the advertisement and call letter was issued for the post in question. He thus submits that under such circumstance, the respondent No.9 cannot be permitted to contest for the post in question.

7] Mr. M.R. Adhikari, the learned Government Advocate, Assam, for the respondent Nos. 1, 2,3 and 5 in terms of the requisition made by the Court has obtained written instructions from the Department of Welfare of Plains, Tribes and Backward Classes which is dated 10.08.2017. The contents of the letter may be reproduced for ready perusal: “With reference to this Department’s earlier letter cited above, I am directed to say that Circular No.TAD/ST/279/82/16 dated 24.12.1982 was issued to extend all economic, educational and employment benefits announced by the State Government from time to time for “Scheduled Tribes” but not for electoral reservations to ST(H) people living in plains and ST(P) people living in Hills. However, with the constitution of SC & ST Order (Amendment) Act, 2002, the Hajong tribe has also been included in the ST(P) list of Assam. As such, Hajong people living in plains district are treated as ST(P) and Hajong people living Autonomous Hill districts are treated as ST(H). The circular dated 24.12.1982 is still in operation and no amendment has been made to the circular. Two letters has been issued subsequently for authority to issue certificate as per circular dated 24.12.1982. Since, Hajong tribe has been included as ST(P) and ST(H) list of Assam, they do not came under the provision of the circular dated 24.12.1982. Your faithfully, S/d 10.08.2017 Addl. Secretary to the GoA WPT & BC Dept. Dispur”

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8] Although the respondent Nos. 1, 2, 3 and 5 have not filed their affidavit- in-opposition but considering the instructions, it can be seen that the Hajong community has been listed as ST(P) list of Assam in respect of those living in the plains districts, whereas, those living in Hills Districts are treated as ST(H). It has further been indicated that the circular dated 24.12.1982 is inoperation and no amendment has been made to the circular. Mr. M.R. Adhikari, therefore, submits that although affidavit-in-opposition has not been filed, the stand of the respondent concerned as contended in the communication dated 10.08.2017 may be accepted as the stand of the Government.

9] Mr. M.P. Sarma who appears on behalf of Mr. U.K. Nair, the learned Standing Counsel, GHC, for the respondent Nos. 4 and 6, refers to the affidavit- in-opposition filed by the said respondents on 23.03.2017, wherein, it has been contended that a requisition was made to the Employment Exchange concerned and pursuant to which the names of the petitioner as well as the respondent No.9 have been sponsored and the candidates concerned have produced their respective castes certificates and therefore, the respondents Nos. 4 and 6 have accordingly acted upon the materials which were provided to them. It has further been contended that the respondent No.6 is not the authority to determine the category to which the candidates belongs to so far as the reservation is concerned but, all the necessary formalities under the guidelines demand for the purpose have been observed without any biasness.

10] Mr. M.M.Deka, the learned counsel for the respondent No.9 submits that the respondent No.9 on his part have also filed an affidavit-in-opposition on 23.04.2014, whereby he has stated that the community of Hajong is listed amongst the ST(H) under the Scheduled Tribes Order, 1950 for the State of Assam and therefore, the respondent No.9 belongs to the ST(H) category. He was accordingly issued the certificate by the authority concerned to enable him to participate in the selection process. As regards the policy decision of the Government as contained in the Circular dated 24.12.1982, he submits that the same requires clarification and therefore, the matter may be referred to the

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Department of Welfare of Plains, Tribes and Backward Classes before the selection process can be finalized.

11] I have considered the submissions advanced by the learned counsel for the parties and I have also perused the relevant materials on records. As may be noticed, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 contains the revised list of STs and SCs which are recognized in the Autonomous District as well as in the remaining part of the State. The community of Hajong finds place amongst the list of STs in the Autonomous District as well as in the area excluding the Autonomous District. It may further be noticed that the community of Mikir (Karbi) has been recognized as STs in the Autonomous District only.

12] A perusal of the policy guidelines formulated by the State Government as has been circulated vide Circular dated 24.12.1982 indicates amongst other that in order to address the difficulties faced when the Scheduled Tribe community has permanent resident in Plains so far as the electoral, economic, educational or employment benefits and reservation thereof are concerned, a person from the Scheduled Tribe community who is recognized as Scheduled Tribe only in the hills districts would be termed as ‘Hills Tribes in Plains’. They would be given the benefit including the employment against the quotas reserved for Scheduled Tribes (Hills). However, in so far as the community of Hajong is concerned, since they are recognized as a Scheduled Tribes both in the Hills and in the Plains , the fact as to whether they should be termed as ST(P) or ST(H) is to be determined depending upon their permanent residency.

13] In the instant case admittedly the respondent No.9 is a permanent resident of Alamganj Part-VIII which is in the district of Dhubri and clearly outside of the autonomous Hills district and therefore, he would be entitled to be considered only against the reservation made for ST(P). Therefore, the caste certificate given to the respondent No.9 on 27.08.2010 is only beyond the stipulation of the guidelines issued by the State Government as per its policy decision and therefore, the same cannot be made use of to secure employment to the post which is otherwise reserved for ST(H). With regard to the submission WP(C) No.2317 of 2011

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of the learned counsel for the respondent No.9 that the matter should be referred to the Department of Welfare of Plain, Tribes and Backward Classes, I am of the opinion that the circular dated 24.12.1982 requires no further interpretation and moreover, the communication dated 10.08.2017 also provides that the policy decision of the State Government as highlighted in the circular is still in force as on date. Therefore, I do not find any reason for referring the matter to the concerned department.

14] Having opined that the respondent No.9 cannot be an eligible candidate for the post of LD Assistant in the establishment of the Chief Judicial Magistrate, Dhubri, (the respondent No.6) and having noticed that the selection process besides conducting viva-voce test on 19.12.2010 has not made its conclusion, the respondent authorities would now be required to complete the said process but strictly as per law and the guidelines. In the result, the writ petition is allowed. The selection process should be finalized as expeditiously as possible. The interim order passed on 16.05.2011 shall stand merged with this order.

15] The communication dated 10.08.2017 produced by the learned Government Advocate shall be retained in the record and marked as ‘X’ for identification.

16] Writ petition stands disposed of. No cost.

JUDGE sumita

WP(C) No.2317 of 2011