SACHA ADIVASI ADHIKAR TRUST Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this Public Interest Litigation, - petitioner Trust have come forward to challenge the order issued by respondent no. 1 dtd. 22/11/2021 and letter dtd. 25/11/2021 at Annexures A and B respectively, inter alia contending to be ultra vires to the provisions of Parent Act being Gujarat Scheduled Castes and Scheduled Tribes and other Backward Classes (Regulations of Issuance and Verification of Caste Certificates) Act, 2018 and against the guidelines of Hon'ble Apex Court's decision in the case of Kumari Madhuri Patil, hence, requested to strike down the same and has consequently therein sought issuance of writ, order or direction declaring that those certificates which were issued under the umbrella of aforesaid impugned order and communication be declared as void ab-initio, without authority of law and State Government be directed to revoke those certificates forthwith in the interest of justice.

(2.) The premise on which the present petition is filed is that petitioner no. 1 is a registered Trust and petitioner no.2 is also a registered public trust, registered under the provisions of Gujarat Public Trust Act, 1950 whereas, petitioner no. 2 - Trust is active for protection of the tribal rights and it has in the past filed two Public Interest Litigation for different issues pertaining to tribal rights. The grievance of the petitioners is that by way of passing the impugned order dtd. 22/11/2021 and letter 25/11/2021, the State authorities have made an attempt to dilute the stringent provisions of law having resultant effect of diluting the procedure in respect of issuance of caste certificates and thereby, unsettling the settled legal position. It has been asserted that by letter dtd. 2/5/1975, issued by the Cabinet Secretariat Department of Personnel and Administrative Reforms of Government of India, has provided list of authorities empowered to issue certificates of verification and in consonance with that, on 22/3/2017 the Home Ministry of Government of India has directed that caste certificates are to be issued by the Revenue Authorities only and based mainly on the Revenue Records to decide the permanent residence of a person. On 16/1/1996, a Departmental Order was issued by Union Government i.e. Deputy Commissioner for Scheduled Castes and Scheduled Tribes whereby he was pleased to direct the Secretary, Social Welfare Department, requesting that the entry relating to the Director of Social and Welfare and District Social Welfare Officer may be deleted from the name of authority authorized to issue the Scheduled Caste/Scheduled Tribe certificates. In the meantime, on 27/6/1986 as well as 25/1/1991 respectively by way of Notifications, the Government of Gujarat has completed and adopted the guidelines of Union of India as stated above.

(3.) The main challenge basically is on the premise that caste certificate can be issued only by the Revenue Authorities not below the rank of Mamlatdar, however, by virtue of notification the caste certificate is permitted to be issued by the Taluka Development Officer also who is the officer under the Panchayat Department. It has further been contended by learned advocate Mr. Aditya Bhatt that powers can be exercised only upto the period of three years, hence, the impugned Notification can be valid only upto 25/2/2022. However, the notification does not speak about duration within which the same would be valid and as such also, it is dehors the provisions of the Parent Act. Learned advocate Mr. Bhatt has further contended that in any case, the scope of Notification issued under Sec. 19(1) of the Act should be limited to the difficulty sought to be removed, which is limited only for the purpose of local election regarding verification and issuance of validity certificates of tribal candidates contesting the local elections. It has been submitted before us that powers can be exercised for removal of difficulties, but the same cannot be inconsistent with the provisions of the Act and by-passing entire Sec. 4 and Sec. 6 of the Act, an attempt is made to dilute the entire statutory mechanism. As such, the action under challenge is in gross inconsistency with the provisions of the Parent Act.