Friday, 22 July 2011

From the archive: K. Kumardhan Singh vs Union Of India

K. Kumardhan Singh vs Union Of India (Uoi) And Ors. on 9 April, 1999
Equivalent citations: AIR 2000 Gau 50
Author: Patnaik
Bench: A Patnaik, D Biswas
JUDGMENT

Patnaik, J.

1. This is a public interest litigation filed by the petitioner who belongs to the Manipuri community and who speaks Manipuri language. The relevant facts briefly are that by a notification dated 27-11-75, the Government of Assam published a list of Other Backward Classes in the State of Assam who would be entitled to reservation in public services. Against serial 13 of the said list published by the notification dated 27-11-75 "Manipuri including Manipuri Brahmins and Manipuri Muslims" were mentioned as an Other Backward Class. On 16-11-92, the judgment of the Supreme Court in Indra Sawhney v. Union of India was delivered. B.P. Jeevan Reddy, J. delivering the majority judgment held in para 117 of the judgment as reported in AIR 1993 SC 477 that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes could be made and which would tender its advice/opinion to the Government, and accordingly directed that such body be constituted both at Central level and at the level of the States within four months. Pursuant to the said directions, at the Central level the National Commission for Backward Classes Act, 1993 was made by the Parliament under which the Central Government was to constitute a body to be known as National Commission for Backward Classes to examine the requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such list and tender such advice to the Central Government as it deemed appropriate. Similarly, at the State level, the Assam Backward Classes Commission Act, 1993 (for short, "the Assam Act") was enacted by the Assam Legislative Assembly under which the Assam Backward Classes Commission was to be constituted to examine the requests for inclusion of any class or classes of citizens as backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Government as it deemed appropriate. Under the said Assam Act, the Assam Backward Classes Commission was constituted and the said Commission examined a complaint relating to non-inclusion of 'Bishnupriya Manipurl' in serial-13 of the list of Other Backward Classes as notified by notification dated 27-11-75 of the Government of Assam and by its order dated 29-9-95 in Case No. 1/94 recommended that serial-13 of the said list be amended so as to include Bishnupriya Manipuri as part of the Manipuri community. On the said recommendation of the Assam Backward Classes Commission, the Government of Assam in the Department of Welfare of Plains Tribes & Backward Classes issued a corrigendum dated 18-3-96 to serial-13 of the list as notified by the notification dated 27-11-75 stating that serial No. 13 would read as follows :

"Manipuri including Bishnupriya Manipuri, Manipuri Brahmins and Manipuri Muslims."

Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution praying for a declaration that the Assam Act is unconstitutional and praying for an order quashing the aforesaid corrigendum dated 18-3-96 issued by the Government of Assam as well as (he order dated 29-9-95 of the Assam Backward Classes Commission in case No. 1/94. The petitioner has further prayed for a declaration that Manipuri language or community is in no way connected with Bishnupriya Manipuri community and for a direction restraining the respondents to use the word 'Manipuri' as prefix or suffix to the word 'Bishnupriya' for any purpose and for restraining the State of Assam to include Bishnupriya Manipuri or Bishnupriya in serial 13 of the list of the Other Backward Classes as notified by the notification dated 27-1 J-75.

2. At the hearing, Mr. B. K. Das, Jearned counsel for the petitioner, submitted that the power to legislate relating to identifica-tion of backward classes is with the Union Parliament and not with the State Legislature. He contended that Entry 41 ofList-II of the Seventh Schedule to the Constitution empowered a State Legislature to make a law relating to State Public Services but the impugned Assam Act is not a legislation on public services of the State of Assam. It is a legislation for identification of backward classes and as no Entry in List-11 or List-111 of the Seventh Schedule to the Constitution relates to identification of backward classes, law relating to identification of backward classes can only be made by the Union Parliament in exercise of its residuary power under Article 248 of the Constitution or under Entry-97 of List-I of the Seventh Schedule to the Constitution. Mr. Das argued in the alternative that para-117 of the majority judgment of B.P. Jeevan Reddy, J. as reported in AIR 1993 SC 477 would show that the Backward Classes Commission was to be created under Article 16(4) read with Article 340 of the Constitution for the purpose of identifying and specifying the backward classes of citizens in whose favour reservations were to be provided and under Article 340 of the Constitution it is the President of India who has the power to appoint a Commission to investigate the conditions of backward classes and not the State Legislature of a State. The impugned Assam Act has been made by the State Legislature for constituting a Commission for identifying the backward classes contrary to the directions of the Supreme Court in the aforesaid majority Judgment of the Supreme Court in the case of Indra Sawhncy v. Union of India, (AIR 1993 SC 477) (supra) and the provisions of Article 340 of the Constitution. Mr. Das further contended that in any case the Union Parliament has already made the National Commission for Backward Classes Act, 1993, and the said Act makes detailed provisions with regard to constitution of National Commission for Backward Classes by the Central Government and for examination of requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. The said Central Act made by the Union Parliament there/ore covers the entire field relating to identification of backward classes and relating to inclusion of any class of citizens as a backward class in the lists as well as their over-inclusion or under-inchision in such lists. According to Mr. Das, since the aforesaid Central Act occupies the entire field for identification of backward classes and their inclusion, over-inclusion or under-inclusion in the lists, the State Legislature cannot make a law on the very same field and the impugned Assam Act is repugnant to the aforesaid Central Act. He submitted that Article 254 of the Constitution made it clear that a law made by the Legislature of a State which was repugnant to the provision of law made by the Union Parliament was void to the extent of such repugnancy. Mr. M. Singh, learned counsel appearing for respondent No. 5 adopted the aforesaid submissions.

3. Mr. P. G. Barna, learned Advocate General, State of Assam, on the other hand, submitted that under Entry-41 of List-II of the Seventh Schedule to the Constitution, the State Legislature has exclusive power to make law relating to State Public Services. He also referred to Entry-45 of List-III of the Seventh Schedule to the Constitution whereunder both the State Legislatures and the Union Parliament have concurrent power to make law relating to enquiries and statistics for the purpose of any of the matters specified in List-II or List-III of the Seventh Schedule to the Constitution. He argued that a reading of the impugned Assam Act would show that the domain and the purpose of the Act was reservation in State Public Services and for the purpose of such reservation a Commission for Backward Classes was to be constituted to enquire and find out as to which were the backward classes which would be granted reservation in the public services of the State. According to Mr. Barua, learned Advocate General, the impugned Assam Act is really an Act made by the State Legislature in exercise of its power under Entry-41 of List-II read with Entry-45 of List-Ill of the Seventh Schedule to the Constitution and cannot be held to be ultra vires. Mr. N. Dutta and Mr. B. Singha, learned counsel appearing for respondent No. 9, adopted the aforesaid submissions of Mr. Barua.

4. Since the impugned Assam Act was enacted pursuant to the directions of the Supreme Court in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477, the said paragraph-117 is quoted hereinbelow :--

"Desirability of a permanent statutory body to examine complaints of over-inclusion / under- inclusion.

117. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/ opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under Clause (4) of Article 16 itself- or under Article 16(4) read with Article 340 - as a concomitant of the power to identify arid specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud, C.J. In Vasanth Kumar, AIR 1985 SC 1495, there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be."

The aforesaid observations and the directions of the Supreme Court would show that the body to examine complaints of Wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes should be created under Clause (4) of Article 16 it self or under Article 16(4) read with Article 340 as a concomitant of the power to identify and specify backward class of citizens in whose favour reservations were to be provided.

5. Clause (4) of Article 16 of the Constitution provides that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Thus complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes were to be examined by the body to be created under Clause (4) of Article 16 of the Constitution for the purpose of providing for reservation of appointments or posts tn favour of any backward class of citizens which was not adequately represented in the services under the State. The object of the impugned Assam Act made pursuant to the aforesaid directions of the Supreme Court in the aforesaid para 117 of the Judgment in the case of Indra Sawhney v. Union of India, (AIR 1993 SC 477) (supra) was to create a statutory body for examining complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes for the purpose of making provisions for reservation of appointments or posts in favour of such groups, classes and sections in the services under the State and not for any other purpose. This would also be evident from the preamble of the impugned Assam Act which is to the following effect :

"Whereas it is expedient to provide for the constitution of a Commission for Backward Classes other than the Scheduled Castes and Scheduled Tribes to streamline and rationalise the procedure for inclusion or over-inclusion of any class or classes of citizens in the list of Backward Classes including More Other Backward Classes to provide reservation of vacancies in services and posts for the members of socially and economically backward sections of the society and for matters connected therewith or incidental thereto."

The preamble of the impugned Assam Act would show that the object of the said Assam Act is to provide reservation of vacancies in services and posts for the members of so- cially and economically backward sections of the society and for matters connected therewith and incidental thereto. The impugned Assam Act therefore was in pith and substance a legislation in respect of State Public Services and relatable to Entry 41 of List II of the Seventh Schedule to the Constitution. Article 246(3) of the Constitution states that the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List-II of the Seventh Schedule to the Constitution. Thus, the State Legislature had the exclusive power under the said Article 246(3) of the Constitution to make the impugned Assam Act relating to reservation for other backward classes in the Public Services under the State of Assam.

6. Further, in the observations of the Supreme Court in para 117 of the judgment in the case of Indra Sawhney (supra), quoted above, it was made clear that the body to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes should be created either under Clause (4) of Article 16 itself or under Article 16(4) read with Article 342 as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations were to be provided..Such a body thus can be created under Clause (4) of Article 16 itself either by an executive order or by law. When such a body is created under Clause (4) of Article 16 itself by law, such law obviously has to be passed by the Parliament or the State Legislature in accordance with its power as enumerated in Article 246 and Article 309 of the Constitution. Since the impugned Assam Act has been made by the State Legislature of Assam in accordance with its exclusive power under Article 246(3) and Article 309 of the Constitution, the impugned Assam Act is within the legislative competence of the State Legislature of Assam and is not contrary to the directions of the Supreme Court in para 117 of the judgment in the case of Indra Sawhney, (AIR 1993 SC 477) (supra) as contended by Mr. Das, learned counsel for the petitioner. The argument of Mr. Das, learned counsel for the petitioner, that a body to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes could be created only under Article 340 of the Constitution as per the direction of the Supreme Court would have been relevant if the Supreme Court had held that such a body could not be created under Clause (4) of Article 16 itself but only under Article 16(4) read with Article 340. Moreover, under Article 340 of the Constitution, the President of India has the power to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to steps that should be taken by the Union or any State to remove such difficulties and to improve their condition. Such a Commission appointed by the President may also investigate the conditions of socially and economically backward classes in a State and identify and specify the backward classes of citizens in whose favour reservations are to be provided. But this does not mean that only a Commission appointed by the President under Article 340 of the Constitution can examine the complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Backward Classes of citizens for the purpose of providing reservation of vacancies in services and posts under the State. A Stale can create a body either by an executive order or by lawunder Clause (4) of Article 16 of the Constitution to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes for the purpose of providing reservation in the public services under the State. The contention of Mr. Das therefore that the impugned Assam Act is ultra vires Article 340 of the Constitution has no merit.

7. Since we have held that the impugned Assam Act is an Act in pith and substance in respect of State Public Services under Entry 41 of List II of the Seventh Schedule to the Constitution and that the State Legislature of Assam had exclusive power under Article 246(3) of the Constitution to make a law in respect of the matters enumerated in List II of the Seventh Schedule to the Constitution, the argument of Mr. Das, learned counsel for the petitioner, that the Impugned Assam Act is an Act in respect of a residuary matter falling under Entry 97 of List I of the Seventh Schedule to the Constitution falls to the ground. Entry 97 of List I and Article 248(1) of the Constitution confers exclusive power on the Parliament to make any law with respect to any matter not enumerated in the concurrent list or State List. Since the impugned Assam Act is a law in respect of State Public Services as enumerated in Entry 41 of List II of the Seventh Schedule to the Constitution, Parliament does not have the exclusive power under the said Entry 97 of List I of the Seventh Schedule to the Constitution or under the said Article 248(1) of the Constitution in respect of the matter on which the impugned Assam Act has been made.

8. We now come to the submission of Mr. Das, learned counsel for the petitioner, that the National Commission for Backward Classes Act, 1993 made by the Parliament has also made provisions for examination of requests for inclusion of any class of citizens as a Backward Class in the lists and for hearing complaints of over-inclusion or un-der-inclusion of any backward class in such lists by a Commission and that the said Central Act covers the entire field which the impugned Assam Act intends to cover and that the impugned Assam Act is therefore repugnant to the said Central Act and is void under Article 254 of the Constitution. Article 254 of the Constitution is quoted herein-below :

"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-

(1) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made1 by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State :

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

A bare reading of the aforesaid provisions of Article 254 of the Constitution would show that it relates in laws made by the Parliament and the Stale Legislatures in respect of any of the matters enumerated in Union and Concurrent Lists and it provides under what circumstances a law made by the Parliament in respect of a matter in the Concurrent List will prevail over a law made by a State Legislature in respect of such matter in the Concurrent List and under what circumstances a law made by such State Legislature in respect of a matter in the Concurrent List will prevail over the law made by the Parliament in the Concurrent List. Thus, the repugnancy that is indicated in Article 254 of the Constitution is between a law made by the Parliament and a law made by a State Legislature in respect of a matter in the Union or Concurrent List and not in respect of a matter in the State List (List II of the Seventh Schedule to the Constitution). This is because, under Article 246(3) of the Constitution, the Legislature of a State has exclusive power to make law for such State or any part thereof with respect to any of the matters enumerated in the State List (List II). Since we have held that the impugned Assam Act is in respect of a matter enumerated in Entry 41 of the State List (List II), Article 254 of the Constitution does not apply to the impugned Assam Act. I-n our considered opinion, the State Legislature of Assam had the exclusive power under Article 246(3) of the Constitution to make the impugned Assam Act in respect of State Public Services in the State of Assam as indicated in Entry 41 of List II of the Seventh Schedule to the Constitution, and the impugned Assam Act could not be held to be void on the ground that it was repugnant to the provisions of the National Commission for Backward Classes Act, 1993 made by the Union Parliament.

9. It was next submitted by Mr. B. K. Das, learned counsel for the petitioner, that the recommendation of the Assam Backward Classes Commission in its order dated 29-9-95 recommending that Serial 13 of the List of the Other Backward Classes as notified by notification dated 27-11-75 be amended so as to include Bishnupriya Manipuri as part of the Manipuri community was arbitrary inasmuch as the said Commission did not follow the criteria laid down by the Supreme Court in paragraph 700 of its judgment in Indra Sawhney v. Union of India as reported in AIR 1993 SC 477. He argued that in the said para 700 of its judgment, the Supreme Court laid down that criteria such as

occu-pation-cum-social-cum-educational-cum-economlc criteria may be adopted for identifying a group or collectivity which was not adequately represented in public services in the State and in favour of which reservation in public services of the State should be made under Article 16(4) of the Constitution, but the said criteria were not followed by the Assam Backward Classes Commission as would be evident from its order dated 29-9-95 in case No. 1/94. He further contended that since the Bishnupriya community was distinct from the Manipuri community, the Assam Backward Classes Commission had no jurisdiction under the impugned Assam Act to recommend inclusion of the Bishnupriya community with the Manipuri community in Serial 13 of the List of the Other Backward Classes notified by notification dated 27-1-75. Mr. Das vehemently argued that the origin of Manipuri community is Tibeto-Burman and the language is Metei while the origin of Bishnupriya community is Indo-Aryan and the language is Bishnupriya. Mr. Das submitted that it is for this reason that according to the petitioner the members of Bishnupriya community are not Manipuri and the Bishnupriya community cannot be included with the Manipuri community and the Court should not only quash the impugned recommendation of the Assam Backward Classes Commission in its order dated 29-9-95 and the corrigendum dated 18-3-96 to Serial 13 issued by the Government of Assam in the department of Welfare of Plains Tribes and Backward Classes on the basis of the said recommendation, but also declare that the Bishnupriya community should not either prefix or suffix the word 'Manipuri' along with the word Bishnupriya. Mr. M. Singh, learned counsel appearing for respondent No. 5, State of Manipur, supported the said contentions of Mr. B. K. Das, learned counsel for the petitioner, and submitted that the Manipur Legislative Assembly has adopted a resolution requesting the Chief Minister of Assam not to suffix or prefix 'Manipuri' to the word 'Bishnupriya' as it would affect the cultural identity of the Manipuri community. He further pointed out that the Commissioner for Linguistic Minorities in India has turned down the request for adding the word 'Manipuri' after 'Bishnupriya' and the decision was taken after taking into consideration the fact thai the Manipuri and the Bismiupnya were two distinct languages, Manipuri belonging to Kuki-Chin group of Tibeto-Burman family of languages and the Bishnupriya to Indo-Aryan group of languages. Mr. Singh further pointed out that in the Census of India 1971, Manipuri and Bishnupriya. are classified Into two different communities. According to Mr. Singh, Mince the Manipuri community and the Bishnupriya community have been separately classified by different statutory authorities, the Assam Backward Classes Commission and the Government of Assam had no jurisdiction to alter such classificalion made by the statutory authorities.

10. Mr. P. G. Baruah, learned Advocate General,-Assam, submitted that the impugned corrigendum dated 18-3-96 to Serial 13 of the List as notified by the notification dated 27-11-75 has been issued on the basis of the recommendation of the Assam Backward Classes Commission in its impugned order dated 29-9-95. Mr. Baruah however did not make any submission on the justification of the recommendation of the Assam Backward Classes Commission for inclusion of "Bishnupriya Manipuri" with Manipuri community in Serial-13 of the List of the Other Backward Classes notified by the notification dated 27-11-75. Mr. B. Singha, learned counsel for the respondent 9 stated that the respondent No. 9 has no objection if Bishnupriya Manipuri community is placed under serial separate from serial No. 13 of the List of Other Backward Classes for the purpose of reservation in public services in the State of Assam. But he pointed out by referring to page 20 of a publication of the Nikhil Bishnupriya Manipuri Sahitya Parish ad titled "Manlpuris" that the people speaking Manipuri and Bishnupriya languages in the State of Assam are regarded as Manipuris and the word 'Manipuri' will have to be prefixed or suffixed to the word 'Bishnupriya' to safeguard the Identity of the race. He further argued that the petitioner and the respondent No, 5, State of Manipur, taking advantage of an incorrect description in the Census report have sought to identify the Manipuri com-munity with people speaking Metei language. According to Mr. Singha, people speaking Bishnupriya language also belong to Manipuri community and no declaration can be issued by this Court that the word Manipuri cannot be suffixed or prefixed to the word Bishpuriya Mr N. Dutta who also appeared for respondcm No. a submitted that the Court in exercise of its power under Article 226 of the Constitution cannot decide the issue as to whether Bishnupriya community is part of the Manipuri community and can therefore prefix or suffix the word Manipuri with the word Bishnupriya. He pointed out that the Court does not have the expertise or the knowledge to decide this intricate and sensitive issue. He relied on a decision of this Court in the case of Konsaba Ibochou v. State of Manipur, 1998 (1) Gauhati LT 1.

11. In para 700 of the judgment of the Supreme Courtin the case of Indra Sawhney, (AIR 1993 SC 477) (supra), the conclusions of the Supreme Court in the said judgment have been summed up and it has been held, inter alia, that identification of a group or collectivity by any criteria other than caste such as

occupation-cum-social-cum-edu-cational-Cum-economic criteria ending in caste may not be invalid. In the said conclusions the Supreme Court however observed that the group or collectivity so identified must be one which was not adequately represented in the public services because Inadequate representation in the services was the sine qua non for the exercise of the power under Article 16(4). For identification of a group or collectivity on the basis of

occupa-tion-cum-social-cum-educatlonal-cum-eco-nomic criteria which was not adequately represented in the public services of the State, the Supreme Court observed in para 117 of its said judgment quoted above that each State should create a body and such body should examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes, and the advice/opinion given by such body should ordinarily be binding on the Government and where the Government does not agree with its recommendation it must record its reason therefor. Pursuant to the aforesaid judgment of the Supreme Court in the case of Indra Sawhney (supra), the impugned Assam Act was enacted providing for constitution of the Assam Backward Classes Commission, Section 9 of the im-pugned Assam Act is quoted herebelow :

"FUNCTIONS AND POWERS OF THE COMMISSION.

9 (1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or order in-clusion of any backward class in such lists and tender such advice to the Government as it deems appropriate.

(2) The advice of the Commission shall ordinarily be binding upon the Government".

Thus the functions of the Assam Backward Classes Commission under Section 9 (1) of the impugned Assam Act quoted above was to examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over inclusion or under inclusion of any backward class in such lists and tender such advice to the Government as it deemed appropriate. The limited function and role of the Assam Backward Classes Commission under Section 9 (1) of the impugned Assam Act read with the aforesaid judgment of the Supreme Court in the case of Indra Sawhney, (AIR 1993 SC 477) (supra) as discussed above was to identify a group or collectivity on the basis of occupation-cum-social-cum-educational-cum-economic criteria and to find out as to whether a backward class so identified was or was not adequately represented in the public services of the State of Assam. Oil a reading of the impugned order dated 29-9-95 of the Assam Backward Classes Commission in case No. 1/94, we find that the Commission has recorded a finding that the Bishnupriya Manipurls were treated as an Other Backward Class of Assam since 12-9-61 and had been enjoying the privileges granted to Other Backward Classes. Bishnupriya Manipuris therefore had been treated as a backward class for the purpose of reservation in public services in the State of Assam since 1961. The Assam Backward Classes Commission was therefore well within its jurisdiction to recommend Bishnupriya Manipuris as an Other Backward Class for the purpose of reservation in public services in the .State of Assam under Article 16(4) of the Constitution. But in the impugned order dated 29-9-95, the Assam Backward Classes Commission has gone further and held that both people speaking Metei language and people speaking Bishnupriya language belong to the same culture and identified themselves as Manipuri and after having recorded this finding recommended that Bishnupriya Manipuri should be included with Manipuri in Serial 13 of the Lists of Other Backward Classes as notified by notification dated 27-11-75. Relevant extracts from the impugned order dated 29-9-95 of the Assam Backward Classes Commission are quoted herein-below :

".....Therefore, the position thus stands that the different clans of the Mangoloid people and the Mayangs/Bishnupriyas lived side by side in Manipur for centuries before 15th Century. The Meitei Language was formed after 15th century AD and the Bishnupriya Language was formed towards the 15th Century AD, both on the soil of Manipur. The 'Manipuri' was attributed to the land, in all probability, after this period, i.e. towards the 17th century when the land was on way to full Aryanisation, in consequence whereof the 'Manipuri' was attributed to the people of Manipur. Therefore, the terms 'Manipur' and Manipuris have been in useby both the Meiteis and the Bishnupriyas commonly with equal right to them; and, practically, people of both these clans used these two terms 'Manipur' and 'Manipuris' without any reservation to identify their land and themselves respectively. In Assam since long past, both the Meiteis and the Bishnupriyas had common recognition and identify as 'Manipuri' without any reservation and they have been maintaining their recognition/identity as such for all practical purposes. But the Meitei section of people follow their language identifying as 'Manipuri language' whereas the Bishnupriya section of people follow their Language identifying as 'Bishnupriya Manipuri Language'.

The Bishnupriya in Assam, since their inception of Migration (before 1806 and 1829 AD also thereafter) from Manipur, had with them their fully developed language called 'Bishnupriya Manipuri' and commonly/ordinarily kept in use for all purposes till date. Since that time the Manipuri People of Bishnupriya section in Assam identified them as Bishnupriya Manipuri with their Language 'Bishnupriya Manipuri' which were commonly recognised in Assam without any reservation for all practical purposes. This is a settled position.

The terms Manipuri or Manipuris in Assam include the Meiteis, Bishnupriyas and Manipuri Muslims. Majority of them had settled in the District of Cachar (old) and the rest are scatteredly living in other part of Assam. The culture of both the sections are uniform in all respects. Their Kirtan, Raslila, dance, Music, customaiy dress, food habit, living style, marriage and Sradha System and all other socio-cultural formalities are homogeneous. The only difference between the Meitei and Bishnupriya is linguistic point of view. The Meiteis follow the Manipuri language, whereas the Bishnupriyas follow the Bishnupriya Manipuri Language. But in reality both the sections of people strictly identify themselves as Manipuri. This is a settled position......"

A reading of the aforesaid extracts from the impugned order dated 29-9-95 of the Assam Backward Classes Commission would show that the Assam Backward Classes Commission had itself found some differences in the origin and the language between the people speaking Metei language and calling themselves Manipuris and the people speaking Bishnupriya language and calling themselves Bishnupriya Manipuris. The Commission once having found that there were some differences between the two communities should not have treated the two communities as one and the same and should have confined itself only to its limited function of identifying the community speaking Bishnupriya language as an other backward class for the purpose of reservation in the public services in the State of Assam and should have recommended its inclusion in the list of Other Backward Classes to the State Government and should not have recommended inclusion of the Bishnupriya Manipuri along with the Manipuri in Serial 13 of the Lists of Other Backward Classes as notified by the notiilcation dated 27-11-75. The impugned order dated 29-9-95 of the Assam Backward Classes Commission in so far as it recommended inclusion of Bishnupriya Manipuris in Serial 13 of the Lists of Other Backward Classes as notified by notification dated 27-11-75 of the Government of Assam is therefore liable to be quashed.

12. The fact however remains that the people in Assam speaking Bishnupriya language call themselves as Bishnupriya Manipuris and are under the firm belief that they are part of Manipuri community and that the word 'Manipuri' should be prefixed or suffixed to the word 'Bishnupriya' while describing themselves. This Court in exercise of its power under Article 226 of the Constitution cannot issue a declaration that the word 'Manipuri' cannot be prefixed or suffixed to the word 'Bishnupriya'. This is because, the dispute between the two communities on this issue is riot a dispute which relates to reservation in favour of Other Backward Classes under Article 16(4) of the Constitution in public services in the State of Assam. Moreover, adjudication of the dispute will require a study into the origin, history and culture of the two communities and the Court exercising powers under Article 226 of the Constitution is ill-equipped and ill-suited to decide this intricate dispute. We are therefore not inclined to issue a declaration that the word 'Manipuri' can-nol be used as a suffix or prefix to the word 'Bishnupriya'.

13. For the reasons stated above, we quash the impugned order dated 29-9-95 of the Assam Backward Classes Commission in so far as it recommends inclusion of Bishnupriya Manipuri along with Manipuri in Serial No. 13 of the List of Other Backward Classes and the impugned corrigendum dated 18-3-96 issued by the Government of Assam on the basis of the said recommendation and direct that Bishnupriya Manipuri will be included in the List of Other Backward Classes as notified by the notification dated 27-11-75 of the Government of Assam under a serial separate from Serial 13 of the said List for the purpose of reservation in public services in the State of Assam under Article 16(4) of the Constitution. Considering however the facts and circumstances of the case, we make no order as to costs. Order accordingly.

Courtesy: indiankanoon.org
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