Allahabad High Court quashes state govt's orders notifying 17 OBC sub-castes as Scheduled Caste in UP

In an important decision, the Allahabad high court has cancelled two Uttar Pradesh government orders through which 17 sub-castes from the Other Backward Classes (OBC) were notified as Scheduled Castes.

A bench of Chief Justice Rajesh Bindal and Justice J.J. Munir nullified the government orders which were issued between 2016 and 2019 while stating that a parliamentary law alone can include in or exclude a particular caste from the list of the Constitution (Scheduled Castes) Order, 1950.

Court stated, "The provisions of Article 341 of the Constitution do not leave any scope for including any Caste or Group to the list of Scheduled Caste in a State provided by the Constitution (Scheduled Castes) Order, 1950, except by law made by Parliament".

Court passed the order in a Public Interest Litigation(PIL) and one other connected matter challenging three notifications dated December 21, 2016, December 22, 2016, and June 24, 2019.

B.R. Ambedker Granthalaya Evam Jan Kalyan Samiti, Gorakhpur had filed a PIL challenging the two Government Orders(GO) issued in 2016 whereas one Gorakh Prasad had moved a writ petition challenging the subsequent GO issued in 2019.

The two 2016 GOs were issued by the Samajwadi Party (SP) government while the third one of 2019 was issued by the BJP government during its previous tenure.

The petitioner had challenged the GOs contending that only the Parliament of the country has the right to include any caste in the SC list as per the provision under Article 341 of the Constitution of India.

Court held that since the GO dated December 21, 2016 did not add or introduce any caste as a Scheduled Caste to the Constitution (Scheduled Castes) Order, 1950 rather it only stated that members of the Caste Majhwar should be issued the necessary certificates after verification of their status, therefore, there was no illegality in the GO.

However, regarding the order dated December 22, 2016, court said that it clearly recognized 17 Other Backward Classes as Scheduled Castes in the name of clarification. Moreover, court noted that the order dated June 24, 2019 was also to the same effect.

Court opined that these orders of the state government placing the 17 OBC castes into SC category were not proper as it is impermissible for a state government to undertake such an exercise in view of the provisions of Article 341 of the Constitution.

Court further observed that the Constitution (Scheduled Castes) Order, 1950 alone can specify which castes, races or tribes or groups within castes, races or tribes, shall be regarded as Scheduled Castes under the Constitution, in relation to a particular State or a Union Territory and this Order has to be made by the President of India.

"Under Article 341(2), any change to the list of Scheduled Castes specified in the President’s order can only be made by Parliament by law," Court added.

Conclusively, the court opined that order to be made by the President, which has been described under Article 341 as a notification is insulated from any kind of variation by a subsequent notification, even by the President and the only variation that can be done is by a parliamentary enactment, not otherwise.

Therefore, while allowing the petitions, court quashed the order dated December 22, 2016, and June 24, 2019.

Case Title: Dr. B.R. Ambedker Granthalaya Evam Jan Kalyan v. State of U.P. and others and connected matter