R.M. Parkash and Another vs State and Others

V.P. Gupta, J.—This appeal is directed against the judgment dated June 27, 1980 passed by a learned single Judge, by which he dismissed the writ petition filed on behalf of the Appellants.

Briefly, the facts are that the Appellants are serving in the Health and Family Welfare Department of the Government of Himachal Pradesh and are confirmed as General Duty Officer (II) in Class II. They claimed that they belong to a Scheduled Tribe being "Kinners'' or ''Kinauras'' and should be considered for promotion to the posts of General Duty Officer Class I against the quota reserved for Scheduled Castes/ Scheduled Tribes. They further claimed that the promotion of Respondents Nos. 3 and 4 be quashed.

It was alleged that father of Appellant No. 1 was initially a resident of District Ambala (erstwhile Punjab) but from the year 1953 he came to village Kalpa (now Himachal Pradesh) previously known as Chini and settled there with an intention to live there permanently. He acquired property and land in village Dooni near Kalpa and had also a residential house where the whole family was living. Some ancestral land of Appellant No. 1 was in District Ambala but the same was in possession of tenants and the Appellant�s family had no vocation there. The father of Appellant No. 1 was a shopkeeper in village Kalpa and was also a Member of the District Citizens Committee, Kinnaur, since 1971. All the family members of Appellant No.- 1 were entered as voters in the voters list prepared d uring the years 1961, 1964, 1966 and 1975 and their names were also shown in the family registers maintained under the Panchayat Election Rules. They being bona fide residents of village Kalpa wexe issued certificates by the Pradhan of the Gram Panchayat and the Member, Tribal Council of Himachal Pradesh. The Appellant No. 1 studied in the school of Kalpa and passed his matriculation examination in tht year 1960 and was admitted to the Medical College, Patiala, against the reserved seats meant for students belonging to the Union Teiritory of Himachal Pradesh. The Appellant No. 1 being a bona fide resident of Himachal Pradesh also obtained the requisite certificates from the Magistrate, Kalpa and was taken in employment in Himachal Pradesh after furnishing the necessary eligibility certificate to the effect that he was a permanent resident of Himachal Pradesh.

The Appellants were employed as General Duty Officers at Kalpa from February, 1970 to August, 1974 but were not allowed any special allowance on the NEFA pattern. Appellant No. 2 is the wife of Appellant No. 1.

With these allegations, the Appellants claimed that they belonged to the Scheduled Tribe because their family including their parents had assimilated themselves with the tribal people of Himachal Pradesh and were following the customs etc. of Kinnaur. They should be treated as Kinners or Kinauras which is a Scheduled Tribe of Himachal Pradesh. The Respondents Nos. 1 and 2, however, were not treating them as Kinauras or Kinners, i.e., from amongst the Scheduled Tribe or Scheduled Caste of Himachal Pradesh and for these reasons they were compelled to file the writ petition. The writ petition was filed on September 12, 1978.

Reply affidavits were filed on behalf of Respondents Nos. land 2 and the allegations of the Appellants were denied. It was alleged that Appellant No. 1 was a resident of RaipAir Rani, District Ambala (Haryana) and in his bio-data of service book in reply to the question as to whether he was a member of Scheduled Caste/Scheduled Tribe, he had replied ''No''. This information was given by the Appellant No. 1 on September 8, 1977. Similarly, Appellant No. 2 was a resident of Chand-pur, District Bijnaur (Uttar Pradesh) and she had also stated in her bio-data of the service book that she was not a member of Scheduled Caste/Scheduled Tribe. It was alleged that they were not residents of tribal area and were not belonging to Scheduled Caste/Scheduled Tribe and their request was rightly rejected by the Government of India for being considered as members of the Scheduled Tribe. The admission of Appellant No. 1 in the Medical College at Patiala was against the reserved seats belonging to Union Territory of Himachal Pradesh and not against any tribal quota seats.

A rejoinder affidavit was filed on behalf of the Appellants in which they admitted that in their service records while answering the question as to whether they were members of Scheduled Caste/Scheduled Tribe they had written the word ''No'' but this admission on their part was wrong. So far as residence in Districts Ambala and Bijnaur was concerned it was admitted that they were born at the respective places, but this information was only limited to the question regarding places of birth. They further asserted that they were, in fact, permanent residents of District Kinnaur and should be treated as ''Kinners'' or ''Kinauras'', a Scheduled Tribe of Himachal Pradesh.

Before the learned single Judge the Respondents also raised an objection that the Court had no jurisdiction to issue such a writ and Union of India was a necessary party. The learned single Judge after considering the various contentions of the learned Counsel for the parties dismissed the writ petition on the ground that the Court had no jurisdiction to declare the Appellants as members of Scheduled Tribe and the Appellants had not impleaded Union of India which was a necessary party for the adjudication of the dispute. It also observed that in view of the admissions of the Appellants in their service records where they had stated that they were not the members of Scheduled Caste/Schedued Tribe, they could not be allowed the relief.

We have heard the learned Counsel for the parties.

The learned Counsel for the Appellants contended that the Appellants and their family members were entered as voters in the voters lists and in the family registers. They were permanent residents of Kalpa and had assimilated themselves for all purposes in District Kinnaur, Himachal Pradesh. They had, in fact, become Kinners or Kinauras being residents of Kalpa, District Kinnaur. The Appellant No. 1 had studied in the village school of Kalpa and the Appellant and their families were being issued permits etc in a manner as if they were premanent residents of Kalpa. He referred to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act No. 108 of 1976) wherein Part V of the Schedule Kinners or Kinauras in Himachal Pradesh included as being members of the Scheduled Tribe. He also referred to passages from the Himachal Pradesh District Gazetteer Kinnaur (1971 Ed.) and contended that the Appellants were members of Kinner or Kinaura tribe because they were permanent residents of Kalpa, District Kinnaur. He also referred to a judgment in G.O.P. (Election) No. 13 of 1967 Gajo v. Ram Chand and Ors., decided on July 16, 1968, by a single Judge of this Court. It was contended that this Court has jurisdiction to declare the Appellants as Kinner or Kinauras and Union of India was not a necessary party.

The learned Counsel for the Respondents contended that the Appellants were not members of the Scheduled Caste/ Scheduled Tribe and could not be treated or declared as Kinners or Kinnauras. The Appellants had specifically stated that they were not members of the Scheduled Caste/Scheduled Tribe. The mere fact that the father of Appellant No. 1 had shifted to Kalpa for business purposes could not confer on the Appellants the status of Kinners or Kinauras and they cannot be treated as members of Scheduled Gaste/Scheduled Tribe. It was also contended that Union of India had rejected the claim of the Appellants and for this reason the Union of India was a necessary party. Further this Court had no jurisdiction to declare the Appellants as members of Scheduled Tribe under Article 342 of the Constitution of India.

We have considered the contentions of the learned Counsel for the parties and have perused the records.

District Kinnaur came into existence on 1-5-1960. Previously, it was known as Chini Tehsil. Chini Tehsil was under the charge of a Tehsildar in the erstwhile Bushahr State. After the merger of States, it continued to be a Tehsil of Mahasu District.

In Chapter II of the Kinnaur District Gazetteer, at page 48, it is mentioned that a number of races and tribes derive their origin from divine sources. Legends and mythology consider Kinners as a distinct race, somewhere between human beings and Gods. At page 50 it is stated that there did exist a race called Kinners and that race inhabited the area now comprising Kinnaur district in addition to the other areas in the Himalya region. In course of time and centuries of change and upheavel the Kinners, probably along with the Kirats in the adjoining region, were gradually pushed towards higher hills and thence to almost extinction or assimilation with the usurpers beyond recognition.

At page 67 of the District Gazetteer it is mentioned that a large proportion of the present population does not belong to the ab-original stock (emphasis supplied). Over the generation, outsiders have entered Kinnaur and got absorbed here. At page 68, it is stated that the stray settlers came to Kinnaur mostly for professional pursuits and, in course of time, acquired matrimonial attachments and never returned to their original homes, or found the circumstances in Kinnaur more peaceful than they once left behind and chose to stay on permanently.

At page 76 of the Gazetteer, it is mentioned that all indigenous inhabitants numbering 36,800 belong to the Scheduled Tribes of which 11,133 persons fall in the category of Scheduled Castes and 25,667 to Jad, Lamba, Khampa, Shot or Both; Kanaura or Kinnara; and Pangwal Scheduled Tribes constituting a percentage of about 27 and 63 respectively. Out of 36,800 indigenous tribal population 4,429 Scheduled Castes and 6,584 Scheduled Tribes reside in Nichar sub-division, 4,365 Scheduled Castes and 9,146 Scheduled Tribes in Kalpa sub-Division and 2,339 Scheluled Casies and 9,937 Scheduled Tribes in Puh sub-division (emphasis supplied).

From the afoersaid statements of the District Gazetteer of Kinnaur, it is evident that only indigenous inhabitants of Kinnaur can be termed as Kinauras of Kinners. The word ''indigenous means originating or developing or produced naturally in a particular land or region or environment.

Tribe means a social group comprising numerous families, clans or generations together with slaves, dependants or adopted strangers.

''Tribal'' means relating to or characteristics of a tribal.

''Ab-original means according to the historical record or scientific analysis.

Thus from the various passages of the District Gaze teer of Kinnaur it is evident that only those persons who are indigenous inhabitants of Kinnaur can be termed as Kin-ners or Kinauras. They should originally belong to Kinner or Kinaura tribe of Kinnaur. These inhabitants should have originated or developed or produced, naturally in that particular land or region or environment. Such original inhabitants can only be termed to fall within the indigenous tribal population of Kinnaur.

Now, Kinnaur came into existence on 1-5-1960 and previously it was known as Chini Tehsil in Bushahr State. Some original inhabitants of Chini Tehsil belonged to a tribe known as Kinners and these Kinners we; e known as Kinauras.

The mere fact that a person came and settled down in Chini Tehsil which subsequently was re-named as District Kinnaur in 1960, cannot be considered. to be a Kinner or a Kin-aura, because many stray settlers came to Kinnaur for pro-fessional pursuits and in course of time they acquired matrimonial attachment and did not return to their original home but chose to stay permanently in District Kinnaur.

In the present case the father of Appellant No. 1 is an original resident of District Ambala (Haryana) and the parents of Appellant No. 2 are original residents of District Bijnaur, Uttar Pradesh. In 1953 father of Appellant No. 1 shifted, to Kalpa (District Kinnaur) where he started his business as a shopkeeper. Appellant No. 1 was minor aged about 10 years and must have shifted with his parents to Kalpa. Appellant No. 1 passed his matriculation examination in 1960 (vide Annexure PH). Appellant No. 1 must have studied in Kalpa (Chini) High School for a period of about six or seven years till he passed his matriculation examination. Both the Appellants were not born in District Kinnaur or Tehsil Chini. They also never declared themselves as members of Scheduled Caste/Scheduled Tribe during their educational period or service period. In September, 1977 while giving the information in their bio-data for completion of their service books they had written the word ''No'' in answer to the column ''whether a member of Scheduled Caste/Scheduled Tribe''. In September, 1977, the Appellants could know their status and this admission on their part is a sufficient proof that they never treated themselves as members of Scheduled Gastes/Scheduled Tribes.

The admission of Appellant No. 1 in Medical College Patiala was against the reserved seat meant for students belonging to the Union Territory of Himachal Pradesh and not against any tribal quota. As father of Appellant No. 1 had gone to Kalpa for business purposes and was residing there, hence it was natural that the names of the father of Appellant No. 1 or his family members should appear in the voters list and the family registers of the Panchayat of Kalpa. They could also be issued the certificate regarding their being bona fide residents of village Kalpa and the father of Appellant No. 1 could also betaken as a member of the District Citizen Committee Kinnaur. These facts cannot prove that the parents of Appellant No. 1 or the family of Appellant No. 1 had become Kinners or Kinauras. It is also possible that the parents of Appellant No. 1 or their family members may have started following the customs etc. of the people of District Kinnaur as they are residing at Kalpa for the last about 25/30 years, but these facts alone cannot make them indigenous inhabitants of District Kinnaur. The eligibility certificate (Annexure PL) issued to Appellant No. 1 and the disallowance of the special allowance can only prove that he was a resident of Kalpa.

26, Every inhabitant or resident of District Kinnaur cannot acquire the status of a Kinner or Kinaura for the simple reason that he or his family members are residing in District Kinnaur. As already stated to be a member of the Kinner or Kinaura tribe, the person must belong to the ab-originak Kinner tribe, that is, he should be an indi genous inhabitant of that particular region. lt also appears that the name Kinnaur District was given to Chini Tehsil due to the reason that originally this region was inhabited by Kinners or Kinauras.

The cumulative effect of the above discussion is that the Appellants cannot be treated to be Kinners or Kinnauras or being members of the Scheduled Tribes of Himachal Pradesh.

The judgments relied upon by the learned Counsel for the Appellants are distinguishable.

29, In Wilson Reade v. G.C. Booth, C.S. (AIR 1958 gau. 128), the facts were that election to Nongpoh constituency within the autonomous district of Khasi and Jaintia Hills was held. In this election a seat was reserved for a member of the Scheduled Tribe of the District. The Appellant (Wilson Reade) filed his nomination papers as a tribal candidate, but his nomination papers were rejected on the ground that he was an Anglo-Indian within the meaning of the word as defined in Article 356(2) of the Constitution and was not a member of that tribe. He challenged the election by filing an election petition. This election petition was dismissed. He preferred an appeal. In appeal it was held that the Tribunal was in substance right in holding that the question of Appellant�s domicile was by itself not enough to confer any particular status on him. But it is certainly an element for determining the fact as to whether the Appellant was regarded as a member of Khasi tribe or not. In the facts and circumstances of the case it was held that the Appellant had acquired the mother''s domicile at birth to the total obliteration of the domicile of his patriarchal father. The father of the Appellant was an Englishman who had married a Khasi Woman. The Appellant had never seen his father and from his childhood he had lived among the Khasi and except a daughter of his, who had married a Bengali and Anr. who married an American, all his children were married to Khasis. The Appellant himself, had married a Khasi woman. According to the Khasi tribe the mother occupied a very important position and was considered to be a founder member. It was further held that to reserve a seat for the Khasi trite was to afford the community as a whole a right of representation and to give the community as a whole a protection.

After discussing the evidence, the learned Judges held that the Appellant belonged to Khasi tribe and the rejection of his nomination papers was held to be wrong.

The facts of this case were distinguishable and are not applicable to the facts of the present case.

In Gajo v. Ram Chand (supra), the question was as to whether Daulat Ram Respondent No. 1 was a member of Pangwala trite or not. The Pangwala tribe of Pangi valley is a Scheduled Trite and the Petitioner had alleged that Daulat Ram was not a memter of Pangwala trite and could not contest the election reserved for Scheduled Trite candidate. After discussing the oral and documentary evidence, the learned Judge observed as follows :

The best test to determine the question appears to be that Pangwala is a person who is resident of Pangi, has merged or absorbed himself among Pangwalas and has teen adopted or accepted by Pangwalas as one of them. An adopted stranger may, in my opinion, te as much a Pangwala as a person who:e ancestors had settled in Pangi.

It was further held:

From these circumstances I deduce that Daulat Ram, though living in Chamba for a considerable time, has every intention to go back and settle in Pangi. He has only temporarily abandoned his house but not his home in Pangi. His affinity with Pangwalas and the marriages of his father and grandfather with Pangwala women led considerable support to the view that I am taking. It follows therefore, that Daulat Ram is a Pangwala and his nomination paper was rightly accepted.

The learned Judge thus took the view that shifting from one place to other does not change the tribe of the person concerned and if he was a member of a particular tribe then he retains the membership of the tribe even though he shifts from one place to Anr. . This judgment cannot help the Appellants'' case.

The Ministry of Home Affairs issued a letter dated 2-5-1975 (Annexure RB) in which guidelines were issued for issuance of certificates to persons belonging to Scheduled Gastes and Scheduled Tribes. While dealing with the cases of migration it is observed that (i) where a person migrates from the portion of the State in respect of which his community is scheduled to Anr. part of the same State in respect of which his community is not scheduled, he will continue to be deemed to be a member of the Scheduled Caste or Scheduled Tribes as the case may be in relation to that State. (ii) Where a person migrates from one State to Anr. , he can claim to belong to a Scheduled Caste or a Scheduled Tribe only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated. According to Annexure RB, the Appellants even if they prove that they had migrated from District Ambala to District Kinnaur cannot claim the status of Scheduled Castes/Scheduled Tribes of Kinnaur District. According to the letter dated 4-10-1978 (Annexure RD) the case of the Appellants was rejected for being considered as a member of the Scheduled Caste/Scheduled Tribe on the basis of the clarification received from the Government of India.

Thus considering the various facts and circumstances of the present case, it is evident that the Appellants cannot be treated to be belonging to Kinner or Kinaura Tribe, that is, members of Scheduled Castes/Scheduled Tribes.

In view of the above discussion, we find that the writ petition filed on behalf of the Appellants deserves dismissal on merits. The writ petition should also be dismissed for the reasons that the questions which the Appellants wish to agitate are disputed questions of fact which require a detailed and elaborate enquiry.

As a lesult of the above discussion, even if it is assumed that the Court had the jurisdiction to entertain and adjudicate, still we find that on merits too, the Appellants cannot be allowed any relief. There are thus no reasons to interfere with the judgment of the learned single Judge.

As a result, the present appeal is dismissed, but the parties are left to bear their own costs.