Allahabad Aug 19(ILNS): The Allahabad High Court has set aside the order of the Uttar Pradesh government under which two Gond sub-castes, Nayak and Ojha, were designated in the Scheduled Tribes category.
The Division Bench comprising of Acting Chief Justice Munishwar Nath Bhandari and Justice Rajendra Kumar-IV passed this order while hearing a PIL filed by Nayak Jan Seva Sansthan.
The writ petition had been filed to challenge the order dated July 15, 2020, issued by the Additional Chief Secretary, Samaj Kalyan Anubhag-3, Government of Uttar Pradesh, Lucknow.
Counsel for the Petitioner submitted that competence to issue a notification to identify the caste to fall to Scheduled Tribes lies with Parliament under Article 342 of the Constitution of India. A Notification was published in the Gazette on January 8, 2003, to declare certain castes to fall in the category of Scheduled Tribes for the State of Uttar Pradesh.
The notification named the castes that would come under the category of Scheduled Tribes in the districts of Maharajganj, Sidharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Gazipur, Varanasi, Mirzapur, and Sonbhadra.
After the notification, the State Government issued an order on July 15, 2020 in reference to the same caste and the district to fall in the category of Scheduled Tribes though the authority does not lie for it more so when there is the substitution of the caste.
While referring impugned order dated July 15, 2020, it is submitted that while naming the castes for 13 districts given in the Notification, para 3 of the impugned order further refers to the caste of Gond and their synonyms or sub-caste Nayak and Ojha to be Scheduled Tribes.
The counsel for the petitioner states that the order was not in the domain of the State Government rather they cannot tinker or substitute the notification published in the Gazette under Article 342 of the Constitution of India.
Additional Advocate General Manish Goyal submitted that the order impugned herein is in consonance with the Gazette Notification dated January 08, 2003.
The necessity to issue the order was due to the malpractices adopted by the person to take caste certificates fraudulently.
Manish Goyal said that it is despite the person not falling in one of the castes referred in the Gazette Notification published by the Government of India. After taking the caste certificate fraudulently, they were using it for different purposes. Thus, to void aforesaid, the order dated July 15, 2020, was issued. The aforesaid has wrongly been taken as an order either for interpretation or substitution of the Gazette Notification of the Government of India.
Goyal further said that, in any case, if the Court gives direction to issue caste certificate in reference to the Gazette Notification dated January 08, 2003, State would have no objection but it may be made clear that the caste certificate may be issued after scrutiny so that those not following in any of the caste given in the Notification may not get the certificate. The prayer is accordingly to allow the State Government to make proper scrutiny of the application before issuance of caste certificate.
The Court considered the rival submissions of parties and perused the record. It is not in dispute that the competence to issue notification for castes to fall in the category of Scheduled Tribes lies with the Parliament under Article 342 of the Constitution of India.
The Court observed that the order dated July 15, 2020, shows the reference of the caste and the district as per the Gazette Notification of Government of India but at the end of Para 3 of the impugned order, apart from the caste referred in the middle part of Para 3, further refers to the caste Gond or its synonyms / sub-caste Nayak and Ojha to fall in the category of scheduled tribes. The aforesaid was not permissible. In fact, the Government of the U.P. should follow the Gazette Notification issued by the Government of India.
“In any case, the order was issued to stop fraudulent acts of persons in obtaining caste certificates. Thus, we may not have interfered in the order but looking to certain substitution in Para 3, it is set aside.
However, with the clarity that while issuing caste certificates in favor of reserve caste candidates named in the Gazette Notification, the State of U.P. would be at liberty to make proper scrutiny of the application so that caste certificate may not be taken fraudulently,” the order reads.
In light of those facts, the Court allowed the writ petition./ILNS/AP/SNG