Purbi Bengal Sharnarthi Samiti v. State Of Bihar

(Per Hon'ble the Chief Justice)

1. This petition under Article 226 of the Constitution is filed in public interest by one Purbi Bengal Sharnarthi Samiti and its General Secretary Sri Niranjan Saha, resident of District-East Champaran (Motihari) for a direction to the respondents-the State of Bihar and the Union of India to declare the persons, who had migrated to India from the then East Pakistan in or around the year 1956 and have been rehabilitated in the districts of Bihar, as Scheduled Caste people in the State of Bihar.

2. According to the petitioners, the petitioner no. 1 is the association of the persons who had settled in the State of Bihar as refugees from the then East Pakistan and the descendants of those erstwhile settlors. It is the claim of the petitioners that most of the refugees from the then East Pakistan belonged to the communities of Namshudra, Jalia Kaibarta, Sunri, Dawgarh, Pond, Bhimali, Mochi etc.-Those communities were recognized as Scheduled Caste in the then East Pakistan. On their migration to the territories of India and settling in the State of Bihar, they should be entitled to be declared as Scheduled Caste people in the State of Bihar and should be extended the benefits available to the Scheduled Caste people in the State of Bihar. Learned counsel Mr. Mukherjee has appeared for the petitioners. He has submitted that the petitioner no. 1 is a registered society and espouses the cause of a class of people, namely, refugees from the then East Pakistan settled in the State of Bihar. He has submitted that the descendants of the erstwhile settlors, unless are classified as Scheduled Caste people, would not have the opportunity to Government employment.

3. This court had, on 3rd January, 2005, noticed that the Government had taken a decision to inquire about the genuineness of citizenship before issuing Caste Certificate. The court was of the view that the action could not be described as impermissible in law. But the work could not continue for indefinite period. The concerned authorities were directed to expedite the verification preferably within a period of nine months. He has submitted that earlier also this court had entertained a public interest litigation in the subject matter. The direction was issued to the State Government as aforesaid. Nevertheless, the State Government has failed to carry out the said direction. He has submitted that the petitioner no. 2 is also a party to the litigation in his individual capacity as his predecessors were the original refugees.

4. The petition is contested by the State of Bihar and the Central Government. Page: 673Learned Advocate Mr. Sinha has appeared for the State of Bihar. He has submitted that the State of Bihar does issue appropriate Caste Certificate provided the concerned person makes a proper application to the State Government with required documents. However, the claim that they were Scheduled Caste people in the then East Pakistan and, therefore, they should be treated as Scheduled Caste people in the State of Bihar, cannot be accepted.

5. The Government of India has filed counter affidavit to contest the petition. It is submitted that the Hon'ble Supreme Court has time and again held that it is the administrative function of the State and the Hon'ble Supreme Court or for that matter any other court cannot make any addition to or subtraction from the Presidential Order. It is submitted that for drawing the list of Scheduled Caste, certain tests are required to be applied. Such as social, educational and economic backwardness arising out of historical custom of untouchability. Untouchability is normally considered as criterion for including a community in the list of Scheduled Castes.

6. On perusal of the records it appears that in the year 1956 or thereabout a large, number of people crossed over the border from the then. East Pakistan. Some of them sought shelter in the State of Bihar. The State of Bihar rehabilitated the said refugees by providing them agricultural land and interest free loan to buy agricultural equipments etc. Their offspring now claim to be declared or included in the list of Scheduled Caste in the State of Bihar. The averments made in the petition are supported by certain representations made by the petitioner no. 2 herein, the minutes of the meetings held, recommendations made etc.

7. We find ourselves ill-equipped. Though the learned counsel Mr. Mukherjee has vehemently submitted that the petitioner no. 1 is a registered society and that the petitioner no. 2 has filed this petition in his individual capacity also, there is nothing on the record to suggest that the petitioner no. 1 is a registered society. Nor the pleadings disclose the names or identity of the beneficiaries of this litigation or the members of the petitioner no. 1, Samiti. The petitioner no. 2 has joined himself as the General Secretary of the Samiti. Neither he has prayed for any individual relief nor the facts pertaining him as individual are on record. We are, therefore, constrained to hold that the petitioner no. 1 has no legal existance or at least it is not established before us; nor the identity of the intended beneficiaries is disclosed before us.

8. In absence of the relevant materials before the court, the omnibus relief prayed for by the petitioners cannot be granted even in public interest. Further, the petitioners have challenged the list of classes recognized as Backward Class and Most Backward Class by the State of Bihar published under the Panchayat Election Rules, 2006. The grievance is that the communities like Namshudra, Jalia Kaibarta, Sunri, Dawgarh, Pond, Bhuimali, Mochi etc. to which the refugees from the then East Pakistan belonged are not recognized as Scheduled Caste in the State of Bihar. It is also the grievance of the petitioners that some of the above referred castes have been included in the category of Most Backward Class and two others ‘Sunri’ and ‘Mali’ have been included in the category of Backward Class. Thus, discrimination is meted out to the descendants of the erstwhile refugees from the then East Pakistan. They have also prayed that such people may not be compelled to produce revenue records to establish their caste.

9. To declare any class of people as Scheduled Caste or Scheduled Tribe or any other special category is purely an Page: 674administrative function of the State. Such declaration is based on the relative position of such class of people in the society. A court of law cannot take up such matters. In absence of the relevant materials before the court, the court would not even suggest that a particular class of people be included in the list of the Scheduled Castes or the Scheduled Tribes or of any other special category.

10. Learned Advocate Mr. Mukherjee has relied upon the judgment of the Supreme Court in the matter of Union of India v. Dudh Nath Prasad [(2000) 2 SCC 20 : AIR 2000 SC 525] [: 2000 (1) PLJR (SC) 71]. He has submitted that in the matter before the Supreme Court though the respondent was resident of the State of Bihar, he was allowed the benefit of being Scheduled Caste candidate on the basis of his parents' residence in the West Bengal and their Caste ‘Nuniya’ notified as Scheduled Caste in West Bengal. We may note that the matter before the Supreme Court was a specific case of an individual. As we have recorded hereinabove, no details of any individual are placed before us. There is nothing on the record to suggest that any of such persons has been denied the Caste Certificate. For the aforesaid reasons, we hold that the relief prayed in the present petition cannot be granted. The petition is, therefore, dismissed. The parties will bear their own cost.

11. We do clarify that we have not examined the claim in the perspective of any individual. We do not propose to say that such refugees or their descendants who are natural citizens of India are not entitled to the benefit of being notified as Scheduled Caste or Scheduled Tribe, etc. Every such individual will have a right to apply to the competent authority for issuance of Caste Certificate on production of relevant materials. In the event such Certificate is denied such individual will have a right to challenge the action before the appropriate forum.