Kashinath Singh Ghatwar @ Kashinath Singh v. House, Ranchi, Jharkhand

… --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. A.K. Rashidi, Advocate : Mr. Md. Azam, Advocate : Miss. Aulia Begum, Advocate : Mr. Akash Kumar Gupta, Advocate : Mr. Rishabh Kaushal, AC to GP II : Mr. Kunal Chandra Suman, A.C. to G.P. II : Mr. Shiv Kumar Sharma, Sr. Panel Counsel, UoI : Ms. Shobha Gloria Lakra, A.C. to Mr. Subhashis Rasik Soren, Advocate For the Resp. 8 For the UOI For the State --- 10/08.07.2024 Learned counsel for the parties are present.

2. This writ petition has been filed for the following reliefs:- “ A) For direction upon the respondents to constitute a high level commission/judicial commission to enquire the matter relate with inclusion of Ghatwar Community within the list of Schedule Tribe whereas the erstwhile research committee has not considered case of the Ghatwar Community for inclusion in the list of Schedule Tribe in right prospective the claim of and rejected the aboriginal Ghatwar Community in their report reported in Jharkhand Tribal Welfare Research Institute's Report 2004 and 2011. (B) For direction upon the respondents to sustain the Notification No. 125-R.R.-IIT-38/38.R dated 7th October 1938, published in Bihar Gazette dated 12.10.38 and to restore Civil Rights purported to the said notification in the year 1938. (C) For hold and declare all the notifications which are passed later to 7th October 1938 and by which "The Ghatwar community" has not included in the list of aboriginal are declared to be unconstitutional / ultra vires /or not applicable to the Ghatwar community.

3. A counter affidavit has been filed on behalf of the State which is taken on record. 4. Learned counsel for the petitioner has submitted that the petitioner belongs to Ghatwar community and the grievance of the petitioner is that although his community members were enlisted as aboriginal (aadivasi) till notification No. 125-R.R-IIT-38/38.R dated 07.10.1938 published in Bihar Gazette dated 12.10.1938 by the Governor of the State in exercise of power conferred by sub section (9) of section 46 of Chhotanagpur Tenancy Act, 1908 as amended by Bihar Act II of 1938 but subsequently in Bihar Gazette dated 21.05.1957 the name of Ghatwar community did not find place in the list of Schedule Tribes and consequently in the Schedule Caste and Schedule Tribe order (Amendment) Act No. 108 of 1976 dated 18.09.1976 also the name of this community did not find place. 5. The learned counsel submits that the Ghatwar community had an important role in the freedom movement against the British Government. He has further submitted that in the year 1989 a research was conducted by Bihar Tribals Welfare Researach Institute, Ranchi under the Welfare Department of the Government of Bihar for inclusion of Ghatwar community of the State of Bihar in the list of schedule tribe but in spite of such research, their name was not included in the list of Schedule Tribe. He has further submitted that the matter regarding inclusion of 2 Ghatwar community was taken up at various levels and ultimately a representation dated 19.01.2012 was made to the Hon’ble Governor, State of Jharkhand, Ranchi and also to the respondent nos. 3 to 6 with a request to constitute High Level Commission/ Judicial Commission to enquire into the matter relating to inclusion of Ghatwar community within the list of schedule tribe although such plea was rejected by the Bihar Tribals Welfare Research Institute in April 1989 and by Jharkhand Tribals Welfare Research Institute report of the year 2004 and 2011. 6. The learned counsel appearing on behalf of the State has submitted that the matter has been taken up by the Tribal Welfare Research Institute of the State of Jharkhand and is being followed up by the Personal Administrative Reforms and Rajbhasha, Department of the State of Jharkhand and for that purpose research is being conducted through Agency which is apparent from the letter no. 589 dated 27.01.2023 and letter no. 5349 dated

22.09.2023 annexed with the counter affidavit filed today and both the letters have been issued by the Personal Administrative Reforms and Rajbhasha, Department of the State of Jharkhand . He has submitted that as per the counter affidavit and documents annexed therewith, at present a detailed study is being conducted by the Anthropologist researcher Dr. Sabir Hussain in this regard and upon submission of his report and on taking expert opinion detailed report shall be submitted to the State of Jharkhand. The learned counsel submits that no such declaration be given by this Court regarding the inclusion or non-inclusion of the Ghatwar community in the list of Schedule Tribe as the same would depend upon the research and appropriate order is to be passed by the competent Authority under the Government of India. 7. The learned counsel appearing on behalf of the Union of India has also submitted that appropriate decision will be taken only when the research material is forwarded by the state of Jharkhand to the Commission for Schedule Caste and Schedule Tribe. 3

8. The learned counsel appearing on behalf of the respondent no. 8 has referred to the counter affidavit and has submitted that the National Commission for Schedule Tribe is a constitutional body and is empowered to see the implementation of various safeguards provided to Schedule Tribes under the Constitution. It is submitted that the modalities for deciding the claim for inclusion or exclusion and other modifications in the orders specifying schedule caste and schedule tribe has already been prescribed by the Ministry of Tribal Affairs. Paragraph no. 3 to 7 of the said counter affidavit is quoted as under:-

3. That, the Respondent no. 8, the National Commission for Scheduled Tribes (NCST) is a constitutional body that was established through Constitution (89th Amendment) Act, 2003 and which came info force on 19th February 2004, set up under Article 338A of the Constitution on bifurcation of the erstwhile National Commission for Scheduled Tribes to oversee the implementation of various safeguards provided to Scheduled Tribes under the Constitution. 4. That, the Cabinet Committee on Scheduled Castes, Scheduled Tribes and Minorities, in its meeting held on 15.06.1999, had approved the following modalities and para (f) amended in its meeting held on 25.06.2002, and para (i) amended in its meeting held on 14.09.2022. The Modalities for deciding claims for inclusion in, exclusion from and other modifications in the Orders specifying Scheduled Castes and Scheduled Tribes lists. 5. That, it is stated and submitted that, according to the above mentioned modalities, for deciding the claims for inclusion in, exclusion from and other modifications in the orders specifying lists of Scheduled Tribes. According, to these modalities, only those proposals which have been recommended and justified by the State Government/Union Territory Administration concerned can be processed further. Thereafter, it has to be concurred with by the Registrar General of India (RGI) and the National Commission for Scheduled Tribes (NCST) for consideration for amendment of legislation. 6. That, it is stated and submitted that, the petitioner, has filed the instant Writ Petition on 23.02.2012, which is 10 years after the introduction of Modalities for deciding the claims for inclusion in, exclusion from and other modifications in the Orders specifying Scheduled Castes and Scheduled Tribes lists, and the answering Respondent no. 8 was directed to be made party respondent, vide order dated 22.03.2023 in the instant case. 7. That, it is stated and submitted that, according to the modalities, for inclusion first framed in 1999, amended in 2002, further amended in 2022; the proposal for inclusion 4 must originate from the respective State or Union Territory government. Following this, the proposal is sent to the Union Tribal Affairs Ministry, which sends it to the Office of the Registrar General of India. If the Office of the Registrar General of India approves the inclusion, the proposal is forwarded to the National Commission for Scheduled Tribes. Only after the concurrence of these institutions, will the proposal be forwarded to the Cabinet to bring in the appropriate amendment to the Constitution (Scheduled Tribes) Order, 1950.”

9. Considering the aforesaid submissions made by the learned counsels for the parties and the materials brought on record, this court is of the considered view that no further order is required to be passed in the present case. The State of Jharkhand has already taken up the matter for conducting required study with regard to the status of Ghatwar community and it is suffice to say that the State Government shall ensure that the study is promptly taken up and completed so that the right of the community be taken care of at the earliest. The question of taking up the matter regarding the status of Ghatwar community by respondent no.8 would only arise upon receipt of a report by the respondent no.8 from the state government. 10. However, the learned counsel for the State is directed to forward a copy of the entire writ records to the Secretary, Personal Administrative Reforms and Rajbhasha of the state of Jharkhand so that the materials produced before this court be also made available for consideration with respect to the research regarding the status of Ghatwar community. 11. This writ petition is accordingly disposed of. 12. Pending I.A, if any is closed. Binit (Anubha Rawat Choudhary, J.) 5