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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMP 15611 of 2023

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in
CWP No. 8301/2023 along with

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connected CMPs in connected
matters.

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Reserved on: 20.12.2023
Decided on: 04.01.2024.
1. CMP no. 15611 of 2023 in CWP no. 8301/2023
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Giripar Anusuchit Jaati Adhikar Sanrakshan Samiti
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….Applicant/Petitioner.
Versus

Union of India and others …..Respondents.

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2. CMP no. 16792 of 2023 in CWP no. 9036/2023

Smt. Renu Chauhan …... Applicant/Petitioner.

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Versus
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Union of India and others ….….. Respondents.

3. CMP no. 17653 of 2023 in CWP no. 9528/2023

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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.

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6. CMP no. 18023 of 2023 in CWP no. 9772/2023

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Manoj Kumar …....Applicant/Petitioner.

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Versus

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Union of India and others …..Respondents.

7. CMP no. 18126 of 2023 in CWP no. 9816/2023

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Babita Thakur ....Applicant/Petitioner.

Versus
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Union of India and others …..Respondents.

8. CMP no. 18214 of 2023 in CWP no. 9929/2023

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Arun Chauhan ….Applicant/Petitioner.

Versus
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Union of India and others …..Respondents.

9. CMP no. 18315 of 2023 in CWP no. 9982/2023

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Samar Veer Singh ….Applicant/Petitioner.

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Versus
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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

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and Mr. Sidharth Jalta, Deputy Advocates

General, for respondents No. 7 to 11.

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Mr. Ashok Sharma, Sr. Advocate with Ms.

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Anubhuti Sharma, Advocate, for the applicant in
CMP no. 18821/2023.

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___________________________________________________________
CMP no. 16792/2023 in CWP no. 9036/2023

For the applicant/petitioner: Mr. Sunil Mohan Goel, Mr. Parash Dhaulta and

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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.

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Rakesh Dhaulta, Mr. Pranay Pratap Singh,
Additional Advocates General, Mr. Arsh Rattan
and Mr. Sidharth Jalta, Deputy Advocates
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General, for respondents No. 2 to 6.

___________________________________________________________
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CMP no. 17653/2023 in CWP no. 9528/2023

For the applicant/petitioner: Mr. Rajnish Maniktala Sr. Advocate with Mr.
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Naresh Verma and Mr. Anil Kumar Manget

Advocates.
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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

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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

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Misra, Advocate, for respondent no.5.

______________________________________________________

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CMP no. 18022/2023 in CWP no. 9771/2023

For the applicant/petitioner: Mr. Vinod Chauhan, Advocate.

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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
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and Mr. Sidharth Jalta, Deputy Advocates
General, for respondents No. 2 to 4.

Mr. Prashant Sharma, Advocate, for respondent

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no.5.

___________________________________________________________
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CMP no. 18023/2023 in CWP no. 9772/2023

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For the applicant/petitioner: Mr. S.S. Jasrotia, Advocate.

For the respondents: Mr. Balram Sharma, Deputy Solicitor General of

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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.

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Mr. Vikrant Thakur, Advocate, for respondent

no. 5.

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CMP no. 8214/2023 in CWP no. 9929/2023

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For the applicant/petitioner: Mr. Anil Kumar, Advocate.

For the respondents: Mr. Balram Sharma, Deputy Solicitor General of

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India for respondents no. 2.

Mr. Anup Rattan, Advocate General, with Mr.

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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.

___________________________________________________________
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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

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India for respondent no. 1.

Mr. Anup Rattan, Advocate General, with Mr.

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Rakesh Dhaulta, Mr. Pranay Pratap Singh,

Additional Advocates General, Mr. Arsh Rattan
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and Mr. Sidharth Jalta, Deputy Advocates

General, for respondents/Scheduled Tribeate.
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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.

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The petitioner in CWP No.8301/ 2023 is the Giripar Anusuchit

Jati Adhikar Sanrakshan Samiti registered under the H.P.Societies

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Registration Act,2006 on 17.8.2022. It claims to be an organisation

working for the protection of the Scheduled Caste Community in the

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Trans-Giri region of Sirmour Ditrict of the State of Himachal

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Pradesh. It stated that it is representing the Scheduled Castes of the

Trans Giri Area before this Court.

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The petitioner had impleaded 11 respondents as parties in
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CWP.No.8301/2023. They are:

(i) The Union of India , Ministry of Home Affairs rep. by it’s

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Secretary
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(ii) The Union of India, Ministry of Social Justice and

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Empowerment through it’s Secretary

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(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

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(viii) State of Himachal Pradesh, Ministry of Social Justice and

Empowerment through it’s Secretary

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(ix) State of Himachal Pradesh, Ministry of Tribal Affairs

through it’s Secretary

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(x) The Scheduled Caste Commission of the State of

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Himachal Pradesh through it’s Secretary

(xi) The State of Himachal Pradesh, Ministry of Tribal

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Development Department through it’s Secretary
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A Society by name Hattee Samiti Kendriya Karyakarni

Giri Paar Kshetra, Sirmaur District, Himachal Pradesh, a body

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also registered under the Societies Registration Act,1860 with

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registration No.4497/1985, had filed CMP.No.18821 /2023

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seeking impleadment in the CWP No.8301 /2023 . It claimed

that it is a representative body of the Hattee community of Trans

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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.

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On 1.11.2023, this Court issued notice to the respondents

in CWP.NO.8301/2023, admitted the writ petition through a

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detailed order after hearing the submissions of Sri Colin

Gonsalves, Sr.Advocate representing the petitioners, and

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directed it to be listed on 18.12.2023. It directed the respondents

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to file replies by the said date and fixed the said date also for

consideration of CMP NO.15611/2023 filed therein seeking stay

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of the said law.
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CMP No.17653/2023 in CWP.No.9528/2023

The Gujjar Samaj Kalyan Parishad, another Society

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regstered under the Societies Registration Act,1860 for

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upliftment of the Gujjar Tribal community, which is a Scheduled

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Tribe, had filed on 16.11.2023, CWP No.9528/ 2023 also

challenging the Constitution (Scheduled Tribes) orders

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( 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

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(v) State of Himachal Pradesh through it’s Chief Secretary

(vi) State of Himachal Pradesh through it’s Principal

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Secretary , Tribal Development Department

(vii) The Deputy Commissioner, District Sirmour, Nahan,

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Himachal Pradesh.

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It had also filed CMP.No.17653 of 2023 seeking stay of

the impugned legislation.

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On 30.11.2023, notice was ordered in this Writ Petition
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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

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meantime.
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Hearing on 18.12.2023
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Inspite of fact that this court had granted about 7 weeks

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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

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absence of stay order, the respondents are intending to

implement the law and issue Scheduled Tribe certificates which

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will then be utilised by the said persons to seek admission to

educational institutions and also employment apart from seeking

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election to tribal constituencies and posts in Panchayats which

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are reserved for Scheduled Tribes. He stated that there is

therefore urgency to take up the stay application CMP.No.

15611/2023.
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The Senior Counsel for the petitioner in

CWP.No.9528/2023 reiterated the above submissions and had

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even placed before this Court a Provisional Scheduled Caste

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Certificate issued to the petitioner in CWP.NO.9519/2023 on the

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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

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(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

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received), and since there were requests also from petitioners in

other CWPs tagged on to CWP No.8103/2023 (other than

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CWP.NO.9528/2023) for issuance of directions by us on similar

lines, it was felt desirable to consider the interim applications.

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The matters were heard elaborately on 18.12.2023,

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19.12.2023 and 20.12.2023.

The Locus of the Petitioners

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It was contended buy the Senior Counsel appearing for
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respondent No.12 in CWP. No.8301/2023 that CWP
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No.8301/2023 and CWP.No.9528/2023 are in the nature of

“class action”, that they ought to have been classifies as “Public

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Interest Litigation” and petitioners ought to therefore comply

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with the Rules framed by this Court for filing of such type of
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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

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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

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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
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determinate class or group of persons and they would be entitled to
maintain an action for judicial redress.”
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( emphasis supplied)

Since in the CWP.No.8301/2023 and CWP.No.9528/2023,

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the petitioner Societies represent interests of Scheduled Castes

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and Scheduled Tribes respectively, and they are contending that

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the impugned law is violative of the rights conferred on them by

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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

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However counsel for petitioners in CWP.No.8301/2023

and CWP.No.9528/2023 pointed out that the Supreme Court has

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pointed out that this is a rebuttable presumption and that in

several cases the Supreme Court had invalidated legislation

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passed by the Parliament or State Legislatures on ground of

of
violation of fundamental rights guaranteed by Part III of the

Constitution of India.
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Sri Sunil Mohan Goel, Counsel for petitioner in CWP
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No.9036 of 2023, placed reliance on the judgment of the
3
Supreme Court in State of Bihar v. Bihar Distillery Ltd to
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contend that a Staute cannot be struck down saying it is

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arbitrary.
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But a 5 Judge Bench of the Supreme Court in Shayara

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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

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by us above would apply to negate legislation as well under

Article 14.” (emphasis supplied)

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This was reiterated in Independent Thought v. Union of

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India5. Similar view was also taken in State of A.P. vs. Mc

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Dowell and Co6 and in A.P.Diary Development

Corpn.Federation v. B.Narasimha Reddy7.

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Of course at this stage, without the respondents having
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filed replies in these Writs, we are not examining this aspect
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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

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later.
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The Dy.Solicitor General, appearing for the Union of

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India and the Advocate General appearing for the official

respondents in CWP.No.8103/2023 and CWP No.9528/2023

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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

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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

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pending adjudication before the High Court, we do not want to
express any opinion on the merits and demerits of the writ

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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
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in passing the impugned orders ignoring the well-settled
proposition of law that in matters involving challenge to the
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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
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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
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found to be unconstitutional or ultra vires the provisions of the

Act. However, the operation of the Statutory provisions cannot be
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stultified by granting an interim order except when the court is

fully convinced that the particular enactment or the rules are ex
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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

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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

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constitutional validity of any legislation, unless the same is set aside
after final hearing and, therefore, the tendency to grant stay of

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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.”
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Recently in Jaishri Laxmanrao Patil v. State of
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Maharashtra10 the Supreme Court reiterated that if the Court is

convinced that the Statute is ex facie unconstitutional and the

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factors like balance of convenience, irreparable injury and

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public interest are in favor of passing an interim order, the Court

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can grant interim relief. Unless the provision is manifestly

unjust or glaringly unconstitutional, the courts do show judicial

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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

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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

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empowers the President of India to specify, by way of public

notification, with respect to a State or Union territory, after

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consultation with the Governor of the State, castes, races or

Tribes or parts of or groups within castes, races or Tribes which

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shall for the purpose of the Constitution be deemed to be
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Scheduled Castes in relation to that State or Union Territory.

Clause (2) of Art.341 enables the Parliament to make a law for

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inclusion or exclusion from the list of Scheduled Castes

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specified in the notification issued under clause (1) thereof.

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Clause (1) of Art.342 of the Constitution of India

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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.

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Pursuant to these powers the President of India had issued

the Constitution (Scheduled Castes) Order,1950 and the

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Constitution (Scheduled Tribes) Order,1950.

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While the Constitution (Scheduled Castes) Order,1950

contains list of castes which are Scheduled Castes in respect of

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each State or Union Territory, the Constitution ( Scheduled

Tribes) Order,1950 contains list of castes which are Scheduled

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Tribes in respect of each State or Union Territory.
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There are in these lists, 52 Scheduled Castes specified

(Annexure P-14 in CWP.No.8301/2023) and 6 Scheduled

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Tribes qua the State of Himachal Pradesh (Annexure P-3 in

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CWP.NO.9528/2023).
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Also the State of Himachal Pradesh had issued a

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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

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courses etc.,(b) appointments in State Government and it’s

instrumentalities and (c) also compete for reserved posts such as

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Sarpanches etc in Gram Panchayats etc with the following

percentages i.e., 15%, 7 1/2 % and 27% respectively.

H
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
ou
of the Lists of Scheduled Castes and Scheduled Tribes”. The said

Committee suggested in para 12 of it’s report dt.25.8.1965

C

stated:
h

“In revising the list of Scheduled Tribes, we have looked for

ig

indications of (i) primitive traits,(ii) distinctive culture, (iii)

geographic isolation,(iv) shyness of contact with the community
H

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

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 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

H
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-
ou
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,
C

marriage, songs, dance, paintings, folklore; Endogamy or in case of

exogamy, marital relationship primarily with other STs.”
h

In 1995, 2006 and 2017 the Union of India had rejected the plea or
ig

inclusion of Hatteee Community of Trans-Giri Area in the list of

STs qua the State of Himachal Pradesh
H

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

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 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

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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

H
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.
ou
The Ministry of Home Affairs addressed a letter
C

dt.10.3.2006 (Annexure P-5 in CWP.No.8301/2023) to the

Joint Secretary, Ministry of Tribal Affairs, Union of India

h

referring to the earlier rejection of 29.11.1995 at para B and

ig

reasons for such rejection; and reiterating it’s disapproval for

H

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

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 22

social, educational and economic backwardness arising out of

the historical custom of untouchability.

.
This office is not in favour of inclusion of

.P
blanket/generic term or territorial name representing more
than one Castes/ Tribes in the State’s STs list, , as it is against

H
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
ou
Pradesh) ( Annexure P-4 in CWP.No.8301/2023) to the Joint

Secretary, Govt. of India, Ministray of Tribal Affairs when

C

his comments had been sought on the proposal of the

h

Himachal Pradesh Government for inclusion of “Hattee”

ig

community of entire Trans Giri Area of Sirmour District. He

H

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

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 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

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blanket term to cover all inhabitants, whether they deserve
Scheduled Tribe status or not, is at present against the

H
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
ou
CWP.No.8301/2023).

(i) The Office of the Registrar General of India does not have
any published ethnographic information on “Hatteee”
C

community. As stated in the report “Hattee” term is used

for three social groups i.e., Rajput, Brahmin and
h

Scheduled Castes. It does not refer to single homogenous

ethnic group/community. Rajput and Brahman cannot be
ig

treated as Scheduled Tribe. Remaining castes have already

been notified as Scheduled castes in the entire State of
H

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

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 24

undesirable to have inclusion in the list of SCs/STs, territorial

names and functional names not specifying any ethnic group

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and (iii) that Hattee is a blanket term to cover all inhabitants,

whether they deserve Scheduled Tribe status or not, very

H
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
ou
forthcoming.

Prima facie case of manifest arbitrariness.

C

The Union of India and the State Government placed

h

reliance on an Ethnographic Report (Annexure P-12 in

ig

CWP.NO.8301/2023) submitted in 2018 by the Tribal

Development Department, State of Himachal Pradesh to

H

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

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 25

OBC caste, are now suddenly changed to Scheduled

Tribe;

.
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(b) There is no material on record/justification to show as

to why the 6 castes which are notified as Scheduled

H
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
ou
political interests of the Brahmin and Rajput

community in the State; it is not rigorous or academic

C

in it’s presentation; it gives no references; it jumps to

conclusions without revealing the basis of documents or

h

studies on which the conclusions are based; and even a

ig

casual reading will show that reliance on such a report

H

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

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 26

geographical isolation as there is good road connectivity to

the rest of the State , and that the ethnographic report relies

.
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on very old publications to present a geographical isolation

which no more exists.

H
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
ou
Pradesh in terms of area of food grains under cultivation;

ranks 4th for area under oil seeds and oil seeds production,4 th
C

in terms of area under high yield variety wheat crops, 3 rd in

h

terms of paddy, 6th in terms of area under fruits and

ig

production of fruits, 3rd in terms of fish production, 5 th in

terms of export of fish, 5th in terms of number of livestock

H

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

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 27

contents of the Ethnographic report of 2018, which ignores

these facts, ought not to be relied on to justify grant of

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reservation to the Hattee community of Sirmour District

under the impugned law.

H
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
ou
mentioned anywhere in the ethnographic report of 2018. Nor

is it produced before this Court by them to justify the

C

recommendation in the said report inspite of having been

h

given an opportunity to do so.

ig

Prima facie it appears that relevant data available with

H

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

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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

H
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
ou
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
C

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
h

grave and important as involved in the present case which

impacts the rights of many under Articles 14 and 16 of the
ig

Constitution must be taken on the basis of contemporaneous

inputs and not outdated and antiquated data. In fact, under
H

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

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 29

Registrar General of India and he too commented (para 18 of

Annexure P-23 dt.13.4.2022) as under:

.
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“18. There is no published reference on Hattee
community. The term Hattee has not been mentioned either

H
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
ou
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
C

(carpenter), Lohar (blacksmith), Dhaki/Toori (musician) and

the (iii) third status group include Koli (messenger),
h

Dom/Dum/Dumma (bamboo work and basketry), Chanal

(menial workers), Chamar (leather worker) who are at the
ig

lowest rung of the society. The above mentioned castes of

H

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

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 30

that Brahmin and Rajput are not parts of Hattee

Community.”

.
Having regard to the above comments of the Registrar

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General of India that Hattee community will include

H
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.

ou

In Jaishri Laxman Rao Patil v. Scheduled Tribeate of

C

Maharashtra12, the Supreme Court ( through Justice Ashok

Bhushan and Justice Abdul Nazeer) while declaring provision

h

of 16% reservations as a “Backward class” for Marathas in

ig

the State of Maharashtra as constitutionally impermissible

H

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

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 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

H
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
ou
education and employment to the detriment of Scheduled

Castes and Scheduled Tribes.

C

In Valsamma Paul (Mrs) v. Cochin University13, the

h

Supreme Court had declared that when a member is

ig

transplanted into the Dalits, Tribes and OBCs, he/she must of

necessity also have had undergone the same handicaps, and

H

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

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 32

reiterated in Sobha Hymavati Devi v. Setti Gangadhara

Swamy14.

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This logic equally applies to the inclusion of Brahmins

H
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
ou
tribes suffer and claim the status of the Scheduled Tribes.
C

The learned Deputy Solicitor General of India and the

learned Advocate General for the State Government are unable

h

to explain how forward and dominant castes like Brahmins and

ig

Rajputs would merit inclusion in the list of Scheduled Tribes

H

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

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 33

that Brahmins and Rajputs are very prosperous and own and

control 80% of the total land in the region and also employ

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advanced agricultural methods, and in contrast the SC

community have extreme deprivation wherein they face caste

H
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
ou
also control the natural resources such as water, irrigation and

fisheries production in the region and dominate in employment

C

and exercise control over the means of production. It is urged

that the Brahmins and Rajputs are claiming ST status to

h

prevent filing of cases under the SC/ST (Prevention of

ig

Atrocities) Act,1989.
H

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.

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 34

But strangely the National Commission for Scheduled

Tribes, constituted under Art.338A of the Constitution of India

.
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to recommend measures for implementation of safeguards for

the Scheduled Tribes passed a resolution in it’s meeting held

H
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
ou
already designated as Scheduled Castes in the Constitution

(Scheduled Castes) Order, 1950 or (iii) castes included in the

C

OBC list notified by the State Government.( Annexure P-23 in

CWP.NO.8301/2023 at pg.675-676).
h
ig

As a body trusted by Parliament to protect the interests

of the Scheduled Tribes, it prima facie ought to have

H

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

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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

H
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
ou
Schedule tribe list.”

“15. In accordance with the approved modalities, the

C

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
h

of Sirmour District in ST list in respect of Himachal Pradesh,

ig

excluding those communities which are already notified as

SC.”
H

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

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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

H
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:
ou
“… The State Government of Himachal Pradesh has
requested to include Hattee community of Trans Giri area of
C

Sirmour District in Scheduled Tribes list excluding those

communities which are already notified as Scheduled Castes for the
h

State of Himachal Pradesh.”

ig

The Dy.Solicitor General reiterated that the SCs list and

the STs list are mutually exclusive as asserted in the reply filed
H

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.

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 37

However no valid explanation was offered by the

Dy.Solictor General and the Advocate General for omission to

.
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exclude the SC communities which figure in the SC list for the

State of Himachal Pradesh inspite of the State Government, the

H
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

ou
may be excluded from the list of OBCs with respect to the

Trans Giri Area of Sirmour District of Himachal Pradesh.

C

The Dy.Solicitor General and the Advocate General have

h

not given any satisfactory explanation for the failure to

ig

exclude the OBCs also (a) from the ST list while including
H

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

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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

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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
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public interest?”
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Thereafter a reminder appears to be sent on 5.11.2023 by

the State Government to the Ministry of Tribal Affairs, Union

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of India, and it is stated by the Advocate General that the State

is still awaiting the answer to it’s query.

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Thereafter another communication dt.6.11.2023 was also

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addressed by the Tribal Development Department of the State

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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

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100 years or more and many have migrated out of this area

during the same period and since there could be

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administrative and legal issues arising while implementing the

notification.

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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.

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But after we have reserved orders in these matters on the
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interim stay applications, News Paper reports dt.2.1.2024

indicated that the State Government had issued a notification

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on 1.1.2024 for implementation of the impugned law.

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On asking of the Court, the Advocate General supplied

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copy of the same.

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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

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then refers to a communication dt.30.12.2023 received from

the Ministry of Tribal affairs, Govt. of India allegedly

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clarifying that “Hattee” refers to permanent residents of the

Trans Giri area of Sirmour District and that it excludes those

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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.
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We are baffled as to how the Ministry of Tribal Affairs,

Union of India could have given such advice without

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Parliament making the said exclusion under clause (2) of

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Art.341 of the Constitution of India in the list of SCs

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mentioned in the Constitution (Scheduled Castes) Order,1950.

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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

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include (i) Badhoi, (ii) Lohar, (iii) Dhaki/Toori/Tayal, (iv)

Koli, (v) Chanal (vi) Dum and (vii) Chamar had historically

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benefited from reservations and they would suffer a significant

loss, and would lose 22% exclusive reservation in employment

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and education and that they would also lose 15% of the

of
national reservation in employment and education

opportunities.
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Apart from this it is contended that the SC community
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has a 15% reservation under Art.243D of the Constitution in

the Panchayat Raj system and this decision would effectively

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remove the reservations for SCs in Ward member, Pradhan,

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Block Development Council member and Chairperson

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position.
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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.

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The Senior Counsel for the petitioner in

CWP.No.9528/2023 highlighted that the Hattees belong to the

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advanced class and do not fulfil the traits/characteristics of

Scheduled Tribes and as such their addition as one of the

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Scheduled Tribes, will affect benefits of reservation extended

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to members of the petitioner association being Scheduled

Tribes by virtue of the Scheduled Caste and Scheduled Tribes

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Orders ( Amendment) Act,1956.
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He too highlighted that granting Scheduled Tribe status

to dominant castes denies tribal population of the State the

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constitutional right of equal participation in the society, results

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in dilution of the SC/ST (Prevention of Atrocities) Act,1989

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and that it is unfair to expect the Scheduled Tribe

communities, who had been practising totally different

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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.

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Thus we are satisfied that balance of convenience exists

in favor of granting interim relief in CWP.No.s 8301/2023 and

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CWP.No.9528/2023.

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Irreparable injury

We are also of the view that if interim orders are not

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granted, tens of thousands of ST certificates would be granted,

reversal of which would be difficult. A fait accompli would

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happen because final hearing of the Writ Petitions cannot be
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done without pleadings being complete, and since this Court is

closed for the winter break till 25.2.2024, there is a possibility

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of these CWPs being practically rendered infructuous.

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CONCLUSION
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For the aforesaid reasons, prima facie there appears to be

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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

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Department of the Govt. of Himachal Pradesh are stayed till

18.03.2024.

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Consequently interim applications in all other CWPs

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mentioned in this order are dismissed.

We hasten to add that the observations/findings recorded

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are only prima facie and tentative and they shall not have any

bearing at the final hearing of these matters.

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List on 18.03.2024 for filing of replies by the

respondents.
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(JUSTICE M.S RAMACHANDRA RAO)

CHIEF JUSTICE
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(JYOTSNA REWAL DUA)

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January 04, 2023. JUDGE

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