Allahabad High Court Sets Aside Uttar Pradesh Govt's Order Designating Gond Sub-Castes Under ST Category

The case in brief

The power to issue Notification for caste to fall in the category of scheduled tribes lies with the Parliament under Article 342 of the Constitution of India and in pursuant to this, a Gazette Notification was issued on 08^th January 2003 to notify certain caste to be scheduled tribes for 13 districts of the State of U.P.

Thereafter, an order dated July 15, 2020 was issued by the Additional Chief Secretary, Samaj Kalyan Anubhag, Government of Uttar Pradesh under which, while naming the castes for 13 districts given in the Notification, it further referred to the caste of Gond and their synonyms or sub-caste Nayak and Ojha to be scheduled tribes.

The Petitioner argued that such reference was not in the domain of the State Government as they cannot tinker or substitute the Notification published in the Gazette under Article 342 of the Constitution of India.

On the other hand, the Additional Advocate General, submitted that the order impugned herein was in consonance to the Gazette Notification dated January 1, 2003 and the necessity to issue the impugned order was due to the malpractices adopted by the person to take caste certificate fraudulently.

It was argued that the order had wrongly been taken as an order either for interpretation or substitution of the Gazette Notification of Government of India.

Court's observations

Noting that the State Government was not required or was having the competence to issue orders either giving interpretation or substitution of the Notification, the Allahabad High Court set aside the order of the UP Government.

The Court, in its order, observed thus:

"The order dated 15th July, 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 court added, the Government of U.P. should follow the Gazette Notification issued by the Government of India.

However, the court did note that the impugned order was issued to stop the fraudulent acts of persons in obtaining caste certificate, and therefore the Court said:

"we may not have interfered in the order but looking to certain substitution in Para 3, it is set aside."

Lastly, the Court clarified that while issuing caste certificate in favour of reserve caste candidate 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.

Case title - Nayak Jan Seva Sansthan v. State Of U.P. And 2 Others

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