REJOINDER ON STATES RESPONSE TO WP (PIL) 23/2012: The petitioner respectfully submits1.

Respondents 1 & 2 (state) have filed the return on WP (PIL) 23/2012 pertaining to the unconstitutional business of Tribes Advisory Council. This return included certain preliminary submissions, paragraph-wise rebuttal and their response to the application for interim relief as filed by the petitioner. 2. Petitioner begs to submit his rejoinder accordingly, as follows3. Respondents seem to be so baffled by the simplicity of the petition that they have failed to grasp the rationale forwarded by the petitioner. The return repeatedly carps on unsound technical grounds and, without offering any counter logic or analysis it merely states that the basic contention of the petitioner is incorrect in the face of constitutional provision , para 4 of the Fifth Schedule of the Constitution that is. 4. Respondents have failed to realize the basic fact that the instant petition challenges the unconstitutional business of Tribes Advisory Council in the larger context of historical injustice to Scheduled Tribes and the impugned Tribal Advisory Council Rules 2006, as notified by the Govt. of Chhattisgarh on Oct.31, 2006, is merely the approach window for this petition. 5. Respondents have failed to understand the descriptive portions of the Fifth Schedule on TAC in absence of historical perspective and the linkage to both Govt. of India Act, 1919 & Govt. of India Act, 1935. For bringing more clarity on this, the petitioner craves the indulgence of this court to take on record a specially prepared table on evolution of TAC (annexure- P-5). This comparison table explains how the mechanism of a separate administration for Scheduled Areas that supersedes the regular state-central administration was carried forward from earlier statutes into the Constitution. Indeed this table puts the constituent assembly debates on part-6 and Fifth Schedule of the Constitution in perspective and thus illustrates how the TAC is crucial to the very activation of Fifth Schedule. This line of deduction makes apparent how the involvement of Chief Minister and state government in the matters of Fifth Schedule goes against the intent of our founding fathers. 6. TAC is mentioned only in four places in the entire Constitution, namely subparas 4(1), 4(2), 4(3) & 5(5) of the Fifth Schedule, dealing respectively with its institution, mandate, provision of by-laws and utility. TAC being a constitutional body, all inferences on its mandate, functioning and limitations need to be made from these places only. It is a well settled legal position as evidenced in several pronouncements of Honble Supreme Court (on CEC, CAG) that any act of discretion by a constitutional authority that is not mentioned generally or particularly in the Constitution is struck down as overshooting the brief. Accordingly, the inference of the respondents that TAC may perform non-advisory functions or suo-motu take up certain issues for discussion without reference of the Governor because it is not prohibited specifically to do so, is a fallacy and in direct violation of the letter and spirit of Constitution. 7. Careful reading of sub-para 4(3) of Fifth Schedule explains that list of subjects the Governor may make rules about do not contain the alteration of mandate. Thus, not only are the said business rules made without authority, they are also clearly ultra-vires the Constitution.

8. Respondents have unduly resorted repeatedly to the excuse of wisdom of rule making authority. It must be pointed out that wisdom, unlike authority, aura & accountability is not a virtue of an office or institution; instead, its a virtue of individuals. Obviously, the respondents have no resources to figure out the depth of knowledge of an Army General on Fifth Schedule of the Constitution. 9. Respondents have incorrectly averred that ordinarily the legality and constitutional validity of an act or the Rules can not be challenged by way of a public interest litigation. There are several recent examples LIKE CHALLENGE TO THE CHHATTTISGARH JAN SURAKSHA ADHINIYAM, 2005 BY THE ) of PILs successfully challenging a statute. 10.Respondents have invoked the rule 79(4) of Chhattisgarh High Court without realizing that it was amended way back in Aug. 2010. ( Instead - 10. Respondents have invoked the Rule 79(4) of Chhattisgarh High Court Rules. It is submitted that Rule 79(4) of the Chhattisgarh High Court Rules has been amended in August, 2010 which nullifies this objection of the State.) Under the amended rule 79(4), the petitioner was only required to file an additional affidavit stating that no personal, political or extraneous gains form the motive of the petition which the petitioner has duly filed even before the case was listed for hearing. It must be pointed out that respondents had raised the issue of locus-standi at the time of admission but this court brushed aside that contention and issued notices. 11.Respondents have laid much emphasis on the locus-standi of the petitioner without realizing that in cases of constitutional violations and more particularly in a Public Interest Litigation , question of locus standi becomes irrelevant. Further, petitioner craves the indulgence of this Court to take on record two documents (annexure- P-6 & P-7) that prove the fact that petitioner was born, brought-up and is registered as a voter in a Scheduled Area of the state. Since TAC emanates from Fifth Schedule which in turn pertains to provisions for administration and control of Scheduled Tribes & Scheduled Areas, petitioner has a direct stake and will be directly affected with the outcome of these proceedings . 12.Respondents have failed to realize that the interim reliefs sought have primarily not much to do with the legal validity or otherwise of the said business rules. Petitioner has merely requested moratorium on implementation of all decisions taken by TAC since this is a prima-facie violation of constitutional provision and has damaging ramifications. 13.Respondents have incorrectly stated that TAC has not been made a party in the petition despite the fact that its very meetings and decisions have been sought to be quashed. It must be pointed out that these two reliefs are also natural consequences to the primary relief sought, declaration of the said business rules as ultra-vires. Its a well settled legal position that institutions and bodies are sued in the name of its secretary and since the Respondent No.2, Secretary of SC & SC Development Department is also membersecretary of TAC, the said inference is incorrect. DateBilaspur IN-PERSON B.K. MANISH PETITIONER-