# Kumari Deepti v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 529
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-23
- **Case number:** Special Appeal No. 109 of 2023
- **Bench:** Mahesh Chandra Tripathi, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumari-deepti-v-state-of-u-p-ors-49996
- **Pages:** 10

## Headnote

A. Service Law - Selection/Appointment -
Reservation - Format of Caste Certificate -
Public Service (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 - Certificate
produced by a candidate claiming the
benefit of reservation available to O.B.C.
category candidate should evidence and
facts (1) that the candidate who belongs
to a group identified, as such, by the
State Government and (2) that the
candidate is not excluded as per the
criteria for the Creamy layer prescribed
by
the
State
government
of
Uttar
Pradesh. (Para 22, 30)
Issue before this Court is as to whether by not
submitting the caste certificate in the format as
prescribed
in
the
advertisement
rather
submitting the same in the format which has
been prescribed by the State of U.P. itself for
the purposes of issuing the caste certificate for
claiming the benefit of reservation available to
O.B.C. category candidates for appointment to
the post under the GOI, the Appellant-Petitioner
dis-entitled herself for claiming such benefit.
(Para 15)

The certificate relied upon and submitted by the
Appellant-Petitioner
dated
06.03.2021
was
issued by the Tehsildar sufficiently certifies and
evidences that the Appellant-Petitioner belongs
to an O.B.C. group identified and recognised by
the State government of Uttar Pradesh and
further that she as per the criteria prescribed by
the State government of Uttar Pradesh for
exclusion under creamy layer does not fall in the
creamy layer and hence, she is eligible and
entitled to claim reservation available to O.B.C.
category candidate. (Para 31)

B. Benefit of the reservation in public
employment to different disadvantaged
section of the society is permissible under
the Constitution of India as an affirmative
action. It is not in dispute that the AppellantPetitioner was given appointment while she
claimed the benefit of reservation available to
O.B.C. candidates in her selection to the post of
Constable (Civil Police) Uttar Pradesh Police
Services, merely because the certificate
produced by her was not in (Praroop-1)
though the certificate produced by her,
clearly evidences that she belongs to an
O.B.C. category as identified by the State
Government of Uttar Pradesh and also
that she does not get excluded as a person
belonging to creamy layer in terms of the
criteria
laid
down
by
the
State
Government of Uttar Pradesh. For the said
purpose, it should not be taken aid of by the
State authorities for denying her otherwise
constitutionally guaranteed right of affirmative
action. (Para 32)

The order passed by the learned Single Judge
cannot be sustained neither on the ground that
the caste certificate as submitted by the
Appellant-Petitioner was not within the time as
530 INDIAN LAW REPORTS ALLAHABAD SERIES
stipulated and extended by the recruitment
Board, nor the same was not on prescribed
format. (Para 35)

Special appeal allowed. (E-4)

Precedent followed:

## Text

4 All. Kumari Deepti Vs. State of U.P. & Ors.
529

20. For all the reasons recorded
above, the writ petition deserves to be
allowed. Accordingly, the impugned order
dated 29.01.2019 is set aside and the writ
petition is allowed.

21. The amount deposited by the
petitioner shall be refunded subject to the
outcome of the demand quantified under
Section 74 of the Act in accordance with
law.
----------
(2023) 4 ILRA 529
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal No. 109 of 2023

Kumari Deepti ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yogesh Kumar Saxena, Sri Ram Sajivan

Counsel for the Respondent:
C.S.C.

A. Service Law - Selection/Appointment -
Reservation - Format of Caste Certificate -
Public Service (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 - Certificate
produced by a candidate claiming the
benefit of reservation available to O.B.C.
category candidate should evidence and
facts (1) that the candidate who belongs
to a group identified, as such, by the
State Government and (2) that the
candidate is not excluded as per the
criteria for the Creamy layer prescribed
by
the
State
government
of
Uttar
Pradesh. (Para 22, 30)
Issue before this Court is as to whether by not
submitting the caste certificate in the format as
prescribed
in
the
advertisement
rather
submitting the same in the format which has
been prescribed by the State of U.P. itself for
the purposes of issuing the caste certificate for
claiming the benefit of reservation available to
O.B.C. category candidates for appointment to
the post under the GOI, the Appellant-Petitioner
dis-entitled herself for claiming such benefit.
(Para 15)

The certificate relied upon and submitted by the
Appellant-Petitioner
dated
06.03.2021
was
issued by the Tehsildar sufficiently certifies and
evidences that the Appellant-Petitioner belongs
to an O.B.C. group identified and recognised by
the State government of Uttar Pradesh and
further that she as per the criteria prescribed by
the State government of Uttar Pradesh for
exclusion under creamy layer does not fall in the
creamy layer and hence, she is eligible and
entitled to claim reservation available to O.B.C.
category candidate. (Para 31)

B. Benefit of the reservation in public
employment to different disadvantaged
section of the society is permissible under
the Constitution of India as an affirmative
action. It is not in dispute that the AppellantPetitioner was given appointment while she
claimed the benefit of reservation available to
O.B.C. candidates in her selection to the post of
Constable (Civil Police) Uttar Pradesh Police
Services, merely because the certificate
produced by her was not in (Praroop-1)
though the certificate produced by her,
clearly evidences that she belongs to an
O.B.C. category as identified by the State
Government of Uttar Pradesh and also
that she does not get excluded as a person
belonging to creamy layer in terms of the
criteria
laid
down
by
the
State
Government of Uttar Pradesh. For the said
purpose, it should not be taken aid of by the
State authorities for denying her otherwise
constitutionally guaranteed right of affirmative
action. (Para 32)

The order passed by the learned Single Judge
cannot be sustained neither on the ground that
the caste certificate as submitted by the
Appellant-Petitioner was not within the time as
530 INDIAN LAW REPORTS ALLAHABAD SERIES
stipulated and extended by the recruitment
Board, nor the same was not on prescribed
format. (Para 35)

Special appeal allowed. (E-4)

Precedent followed:

1. Gaurav Sharma Vs St of U.P. & ors., Special
Appeal No. 156 of 2017, 2017 AIR (Allahabad)
116 (Para 3)

2. Rinki Yadav Vs St. of U.P. & ors., Writ-A No.
4689 of 2022 (Para 4)

3. St. of U.P. Vs Rinki Yadav, Special Appeal
Defective No. 274 of 2022, 2022 Law Suit (All)
1900 (Para 5)

4. Surendra Mohan Yadav Vs St. of U. P. & ors.,
Special Appeal No. 823 of 2018, decided on
05.09.2018 (Para 14)

5. Gaurav Sharma Vs St. of U. P. & ors., 2017 5
ADJ 495; 2017 [35] LCD 1720 (Para 14)

Present
special
appeal
assails
the
judgment and order dated 04.01.2023,
passed by learned Single Judge in Civil
Misc. Writ Petition No.17259 of 2022.

(Delivered by Hon'ble Saurabh Srivastava, J.)

Order
on
Civil
Misc.
Delay
Condonation Application No. 1 of 2023.

The delay in filing the appeal has been
explained in the affidavit.

Cause shown is found sufficient.

Delay is condoned.

Application is allowed.

Order on Appeal.

1. Heard Shri Y.K. Saxena, learned
counsel for the appellant, Shri Mohan
Srivastava, learned Standing Counsel for
the State respondents.

2. The Special Appeal is questioning
the validity of the impugned judgment and
order dated 04.01.2023 passed by the
learned Single Judge in Civl Misc. Writ
Petition No. 17259 of 2022 (Kumari
Deepti versus State of U.P. and others) and
further prayed that the respondent be
directed to accept the claim of the
petitioner for appointment in the O.B.C.
category in accordance with law during the
pendency of this Special Appeal.

3. Learned counsel for the appellant
in support of his submission states that
while passing the order learned Single
Judge has erred and has not considered the
Full Bench Judgement of this Court
rendered in a bunch of matters, leading
being Special Appeal No. 156 of 2017Gaurav Sharma versus State of U.P. Thru
Secy. and 3 Others, 2017 AIR (Allahabad)
116.

4. He submits that in the similar facts
and circumstances, the learned Single
Judge in Writ A No. 4689 of 2022 (Rinki
Yadav versus State of U.P. Thru. Addl
Chief Secy. Home (Police) Anubhag-6
Lko. And 3 Others) wherein she was
working on the post of Constable and was a
candidate for selection to the post of Sub
Inspector
(Civil
Police)
Platoon
Commander (PAC) and Second Officer in
Fire
Brigade
in
pursuance
to
the
Advertisement issued in February, 2021 her
candidature was rejected by the respondent
that the selection mode is considering the
candidature of the petitioner under the
General Category rather than treating her
under O.B.C. Category, allowed the similar
prayer of the petitioner as prayed in the
instant petition.

5. The Rinki Yadav (supra) has
challenged
the
said
action
in
the
4 All. Kumari Deepti Vs. State of U.P. & Ors.
531
aforementioned Writ Petition where the
learned Single Judge vide order dated
09.09.2022 had allowed the writ petition
and directed the respondents to accept the
O.B.C.
Certificate
submitted
by
the
petitioner and proceeded with the process
of selection of the petitioner on the post of
Sub Inspector (Civil Police). He submits
that the said order was subject matter of the
Special Appeal Defective No. 274 of 2022
(State of U.P. versus Rinki Yadav 2022
Law Suit (All) 1900.

6. The present Intra Court Appeal has
been filed under Chapter VIII Rule 5 of Court
with the prayer to quash & set aside the
judgment dated 04.01.2023 passed by learned
Single Judge and further direct the State
authorities, specifically Uttar Pradesh Police
Recruitment
and
Promotion
Board
(hereinafter referred as the "Recruitment and
Promotion Board") to declare her result
treating her candidature belonging to Other
Backward Class category, The cause of action
arises in favour of the Appellant-Petitioner
for filing the writ petition when her result has
not been declared in the select list even after
securing higher marks than the lowest cut-off
marks in the O.B.C. category. The AppellantPetitioner preferred representation dated
21.08.2022 for seeking declaration of her
result under O.B.C. category and the same
has not been responded in any manner
whatsoever. The learned Single Judge while
deciding the petition preferred by the
Appellant-Petitioner dismissed the same on
the ground that firstly she could not produce
the O.B.C. certificate on prescribed format
within the time as specified in the
advertisement, and thereafter he warranted
O.B.C.
certificate
submitted
by
the
Appellant-Petitioner at highly belated stage.

7. The Recruitment and Promotion
Board issued an advertisement in the month
of February, 2021 for direct recruitment to
the post of Sub-Inspector Civil Police,
Platoon Commander P.A.C. and Second
Fire Officer. The number of vacancies
advertised through the said advertisement
were 9534. The Appellant-Petitioner is
presently
rendering
her
service
as
Constable (Civil Police) Uttar Pradesh
Police Services and was recruited on the
said post under the reserved category of
Other Backward Classes. Pursuant to the
advertisement in question, she submitted
her online application along with other
required documents, she also furnished a
certificate
issued
by
the
Tehsildar
Chhibramau,
District
Kannauj,
on
06.03.2021 which is available at page 29
appended to the Appeal as Annexure No.1.
By furnishing the said certificate, the
petitioner claimed that her candidature for
recruitment to the post in question has been
considered as a reserve category candidate
belonging to Other Backward Class.

8.

The
Appellant-Petitioner
participated in the written examination and
also in the physical efficiency test. The
final marks obtained by the petitioner on
the basis of written examination/physical
efficiency test are 291. 32, whereas the last
candidate belonging to O.B.C. category
selected had secured 285.03 marks. The last
candidate in the open category i.e. under
the General category selected, has secured
296.5 marks. These marks in different
categories are in respect of the female
candidates.

9. Due to non-declaration of result
related to the Appellant-Petitioner as
selected candidate it is the apprehension of
the Appellant-Petitioner that at the time of
verification
of
documents,
it
was
discovered that the Certificate submitted by
the Appellant-Petitioner for seeking benefit
532 INDIAN LAW REPORTS ALLAHABAD SERIES
of reservation for appointment in question
was not as per the advertisement pursuant
to which selections were made.

10. Accordingly, she has been denied
recruitment/appointment on the post of
Sub-Inspector or any other equivalent post
by treating her to be an open category
candidate and also for the reason that since
the last open category candidates selected
had secured 296.5 marks, whereas the
marks obtained by the Appellant-Petitioner
were 291.32 hence, she could not get
selected in the open category on the basis
of merit. It is not denied by the
respondents-State Authorities that the only
reason for not treating the AppellantPetitioner's candidature as a reserved
category candidate belonging to Other
Backward Class is that she did not submit
the caste certificate as per the format
(Praroop-1)
appended
with
the
advertisement.

11. Mr. PK Giri, learned Additional
Chief Standing Counsel appearing for the
State respondents vehemently argued that
as per the notes appended to clause 5.4 of
the
advertisement,
the
benefit
of
reservation to those candidate who belong
to Other Backward Classes, but fall in the
creamy layer will not be available. Drawing
out attention to note 3 appended to clause
5.4 of the advertisement, it has been argued
by Ld. Additional Chief Standing Counsel
that the said provision in the advertisement
which
provides
that
the
candidates
belonging to Other Backward Classes as
mentioned in Schedule-1 of the Public
Service (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 (hereinafter referred to
as the Reservation Act, 1994) will not be
entitled to the benefit of reservation if they
fall in the creamy layer Category. He has
also stated that as per the stipulation made
in note 3, caste certificate to be submitted
by the candidates claiming the benefit of
reservation available to Other Backward
Classes shall be in format (Praroop-1) and
should have been issued on or after 1 April
2020, but before the last date of making the
application. That is to say, the caste
certificate to be submitted by the candidate
concerned
should
have
been
issued
between 1.04.2020- 30.04.2021 for the
reasons that 30.04.2021 was the last date as
per
the
advertisement
to
make
the
application.

12. Caste certificate issued on
06.03.2021 by the Tehsildar certifies that
the Appellant-Petitioner daughter of Vimal
Kishore, whose mother's name is Aadesh
Kumari belongs to Lodhi community which
is recognised as the backward class under
the Government of India resolution dated
10 September 1993 published in the
Gazette dated 13 September 1993. It also
certifies that she does not belong to the
persons/sections of creamy layer mentioned
in the office memorandum issued by the
Government of India, Department of
Personnel & Training, dated 08.09.1993 as
modified by office memorandum dated
09.03.2004 and 14.10.2008 or the latest
notification of the Government of India.

13. The sole submission of the Ld.
Additional
Chief
Standing
Counsel
appearing for the State authorities is that
since the Appellant-Petitioner did not
furnish the caste certificate as per the
requirement of note 3 appended to clause
5.4 of the advertisement and also that since
the caste certificate furnished by her was
not in the format (Praroop-1) appended to
the advertisement as such she has disentitled herself to be given the benefit of
being considered for the benefit of
4 All. Kumari Deepti Vs. State of U.P. & Ors.
533
reservation available to O.B.C. category
candidates.

14. Ld. Additional Chief Standing
Counsel also relied upon a Judgment
rendered by the Division Bench of this
Court in the case of Surendra Mohan Yadav
Vs. State of Uttar Pradesh and others
decided on 05.09.2018 in Special Appeal
No. 823 of 2018, wherein, according to
him, it has been held that if a candidate
fails to submit O.B.C. certificate as per the
format prescribed in the advertisement and
rather furnishes the certificate which
related to the appointments to the post
under the Government of India and not
under the State of Uttar Pradesh, then
candidature of such a candidate cannot be
considered
in
O.B.C.
category.
The
Division
Bench
judgement
dated
05.09.2018 places reliance on the Full
Bench judgement of this Court in the case
of Gaurav Sharma Vs. State of Uttar
Pradesh and others 2017 5 ADJ 495,
equivalent citation of which is 2017 [35 ]
LCD 1720.

15. Issue which has been emerged to be
answered by this Court in this case is as to
whether by not submitting the caste
certificate in the format as prescribed in the
advertisement rather submitting the same in
the format which has been prescribed by
the State of U.P. itself for the purposes of
issuing the caste certificate for claiming the
benefit of reservation available to O.B.C.
category candidates for appointment to the
post under the Government of India, the
Appellant-Petitioner dis-entitled herself for
claiming such benefit.

16. As per clause 5.4 of the
advertisement, a candidate claiming the
benefit of reservation available to O.B.C.
category candidates was required to submit
the caste certificate with certification to the
facts, (1) that the candidate does not fall
foul of creamy layer and (2) that the
certificate ought to have been issued by the
competent authority between the period
1.04.2020-30.04.2021, whereas, the caste
certificate furnished by the AppellantPetitioner is concerned, it was issued by the
competent authority i.e. the Tehsildar
concerned on 06.03.2021, which date falls
within the period prescribed for obtaining
the certificate as per the stipulation made in
the
advertisement
itself
i.e.
between
1.04.2020-30.04.2021.
The
certificate
relied upon by the Appellant-Petitioner also
clearly certifies that she does not fall foul
of creamy layer as per the notification
issued by the Government of India,
Department of Personnel & Training by
means of the Office Memorandum dated
08.09.1993 or/and at the latest notifications
including
the
notifications
dated
09.03.2004 and 14.10.2008.

17. One of the issues which was
considered by the Full Bench in the case of
Gaurav Sharma (Supra) was as to whether
there exists any irreconcilable difference or
repugnancy between the norms fixed by the
Union and State Governments with regard
to certification of creamy layer? if not, its
effect, it is also given to point out that the
petitioner in the Gaurav Sharma case had
also submitted the certificate certifying that
he belonged to the O.B.C. category in the
same format in which the appellantPetitioner obtained the certificate and
submitted the same for seeking benefit of
the reservation available to O.B.C. category
candidates. The format in which the
Appellant-Petitioner
obtained
the
said
certificate is prescribed by the State of
Uttar Pradesh. This fact is not in dispute,
however,
as
stated
by
the
learned
Additional Chief standing Counsel, the said
534 INDIAN LAW REPORTS ALLAHABAD SERIES
format is for claiming benefit of reservation
available to O.B.C. category candidates in
relation
to
employment
under
the
Government of India and not in relation to
employment under the State of Uttar
Pradesh.

18. The caste certificate relied upon
by the candidate in the case of Gaurav
Sharma is the same in which the AppellantPetitioner was issued the certificate by the
Tehsildar. The Full Bench in the case of
Gaurav Sharma (Supra) has opined that,
while it is true that caste certificate is only
recognition of an existing status, and
O.B.C. candidate necessarily must establish
the twin conditions of belonging to an
O.B.C. group recognised by the State and
also that he does not fall within the creamy
layer. In para-26 of the judgement in the
case of Gaurav Sharma, the Full Bench has
further observed that while it is true that
O.B.C. candidate even she produces a
certificate which evidences that she does
not stand excluded from the benefit of
reservation
in
terms
of
Office
Memorandum dated 14.10.2008, that issue
still remain as to whether she is an OBC, as
are specified and identified by the State
Government of Uttar Pradesh.

19. The Full Bench further observes
that
although
the
certificate
initially
submitted by the OBC, candidates before
court did not stand excluded by virtue of
his
standards
fixed
by
the
Office
Memorandum
dated
14.10.2008,
the
certificate did not evidence them belonging
to an O.B.C., as identified in the State
Government of Uttar Pradesh. The Court
further goes on to the observation that for
the purposes of seeking the benefit of the
reservation it is imperative for a candidate
to establish that he/she belongs to O.B.C.,
as recognised and identified by the State
concerned and further that he/she does not
within the field of exclusion.

20. Finally, answering the issue (C) it
has been said by the Full Bench in para-27
of the report that we accordingly answered
question number one in the negative and
hold that an O.B.C. candidate is not exempt
from the rigours of a cut-off or last date
prescribed
in
an
advertisement
or
recruitment notice. We further declared that
Arvind Kumar Yadav correctly articulates
the law on the issue and over rule Pravesh
Kumar and Shubham Gupta. In so far as
question No. 3 is concerned, we hold that
although, there is no repugnancy the norms
fixed by the Union and the State
Government, the same would have no
favourable impact upon the ability of a
candidate unless he/she does not furnish a
certificate evidence of her as belonging to
O.B.C.
category
as
recognised
and
identified by the State.

21. Thus, the Full Bench in the case
of Gaurav Sharma (Supra) has found that
so far as the certification of creamy layer is
concerned, there is no repugnancy in the
norms fixed by the Union and the State
Government. Accordingly, we have no
hesitation to hold that insofar as the
exclusion under the creamy layer is
concerned, the Appellant-Petitioner could
not be excluded for the reasons that the
certificate furnished by her theory states
that she does not stand excluded from the
rigours of creamy layer in terms of the
notification
issued
by
the
Central
Government. The Full Bench has already
held that so far as the criteria of exclusion
under the creamy layer component is
concerned there does not exist any
repugnancy between the criteria laid down
by the State Government and the Central
government.
4 All. Kumari Deepti Vs. State of U.P. & Ors.
535

22. We however also notice that the
Full Bench has categorically held that even
if a candidate produces a certificate
evidencing that he/she does not get
excluded from the rigours of creamy layer
there he/she would still have to possess a
certificate evidencing that he/she belongs to
an
O.B.C.
group
as
identified
and
recognised by the State Government of
Uttar
Pradesh.
For
considering
the
aforesaid aspect, what we find is that the
certificate furnished by the AppellantPetitioner on 06.03.2021 which was issued
by the competent authority i.e. the
Tehsildar clearly certifies that she belongs
to Lodhi community there does not exist
any repugnancy between the specification
made for the said purpose by the
Government of India as also by the State
Government of Uttar Pradesh.

23. We are very clear in our mind that
the certificate furnished by the AppellantPetitioner will clearly suffice to certify that
the Appellant-Petitioner belongs to a
community
identified
by
the
State
Government of Uttar Pradesh is an O.B.C.
group and accordingly she will be entitled
to seek the benefit of reservation available
to an O.B.C. category candidate even while
seeking employment under the State
Government of Uttar Pradesh.

24. By bare perusal of Schedule-1
appended to 1994 Reservation Act which
clearly
reveals
that
Entry-8
therein
mentions
the
community
Lodhi.
Accordingly, as per the identification
recognition made by the State Government
of Uttar Pradesh for a particular community
belonging to Other Backward Class, the
entries in Schedule-1 is the only source for
determination of such an issue. Admittedly,
Lodhi community are identified and
recognised for the said purpose.

25. If we examine the notification
published
in
the
Gazette
of
India,
extraordinary dated 13.09.1993 which
publishes the resolution of the Government
of India dated 10.09.1993 what we find is
that in the State of Uttar Pradesh Lodhi
community is listed at serial No. 8.
Accordingly,
on
examination
of
the
identification made by the Government of
India as also by the State Government of
Uttar Pradesh for the purposes of inclusion
of a particular group or community
amongst the Other Backward Classes or
Sections entitled to seek benefit of
reservation available to them, we find that
there does not exist any repugnancy as far
as Lodhi community is concerned. The
reasons for us to observe that there is no
such repugnancy is that Lodhi community
finds mention in the notification of the
Government of India dated 13.09.1993
which published the resolution of the
Government of India dated 10.09.1993 and
it is also included at entry 8 of Schedule 1
appended to 1994 Reservation Act passed
by the Legislature of the State Government
of Uttar Pradesh.

26. Ld. Additional Chief Standing
Counsel has also made his submission
based on the provisions contained in
Section 9 of the Reservation Act, 1984
which provides that for the purpose of
reservation provided under the said Act
caste certificate shall be issued by such
authority or officer in such manner or form
as the State Government may by order
provide.

27. Ld. Additional Chief Standing
Counsel representing the State authorities
has not dispute that the authority was
issued because certificate dated 06.03.2021
which was furnished by the AppellantPetitioner claiming the benefit of the
536 INDIAN LAW REPORTS ALLAHABAD SERIES
reservation available to O.B.C. category
candidates has been issued by the Tehsildar
with the competent authority as provided
by the State Government for the purpose of
issuing certificate. The Schedule appended
to the Uttar Pradesh Janhit Guarantee Act
of 2011 also prescribes the Tehsildar to be
the
authority
competent
to
issue
a
certificate.

28. The only reservation expressed by
the Ld. Additional Chief Standing Counsel
to the caste certificate issued on 06.03.2021
is that it is not issued in the manner
prescribed by the State Government. The
basis for such an arguments as advanced by
the Ld. Additional Chief Standing Counsel
is that the certificate dated 06.03.2021
which had been issued by the Tehsildar
clearly mentioned therein that it is a
certificate to be produced by Other
Backward
Classes
applying
for
appointment
to
the
post
under
the
Government of India. His submission is
that the information as appended to the
advertisement
(Praroop-1)
is
a
form
prescribed by the Government for issuance
of caste certificate to those who apply for
appointment to the post under the State
Government of Uttar Pradesh.

29. It is also not in dispute that both the
formats i.e. the format in which the
Appellant-Petitioner
had
obtained
the
certificate which was issued to her by the
State of the place itself. The first format is
for a certificate to be produced by O.B.C.
category
candidate
applying
for
appointment to the post under Government
of India, whereas the format as appended to
the advertisement has been prescribed by
the State to be produced by the Other
Backward Classes candidates who apply
for appointment to the post under the State
of Uttar Pradesh. The Full Bench of this
Court in the case of Gaurav Sharma (Supra)
as discussed above, has already found that
so far as the criteria for exclusion on
account of person belonging to creamy
layer is concerned there does not exist any
repugnancy between the descriptions made
for the said purpose by the Government of
India and by the State government of Uttar
Pradesh. The issue as to whether there is
any repugnancy, so far any person
belonging to Lodhi community claiming
his/her status as O.B.C., as prescribed by
the State of Uttar Pradesh and the
Government of India was not an issue
before the Full Bench neither has it been
discussed and considered. However, if we
examine the reasoning given by the Full
Bench for recording that no repugnancy
exist, so far as the criteria for exclusion of
candidate on account of creamy layer is
concerned
and
apply
the
same
for
examining as to whether there is any
repugnancy between the identification of a
particular, category as O.B.C. by the State
of Uttar Pradesh and by the Government of
India. We find that as far as Lodhi
community is concerned, there does not
exist any repugnancy. Lodhi community is
included as O.B.C., in the notification
issued on 15.09.1993 published in the
Gazette dated 13.9.1993. Similarly Lodhi
community is mentioned at entry 8 of
schedule 1 of the 1994 Resolution Act. As
there is no discrepancy in inclusion of
Lodhi community amongst the Other
Backward Class exists in case any person
belonging to Lodhi community reservation
available to O.B.C. category candidates for
appointment or post either under the
Government of India or under the State of
Uttar Pradesh.

30. We may recreate the basic
principle which runs as a common thread
throughout the judgement of the Full Bench
4 All. Kumari Deepti Vs. State of U.P. & Ors.
537
of this Court in case of Gaurav Sharma and
Others is that certificate produced by a
candidate
claiming
the
benefit
of
reservation available to O.B.C. category
candidate should evidence and facts (1) that
the candidate who belongs to a group
identified,
as
such,
by
the
State
Government and (2) that the candidate is
not excluded as per the criteria for the
Creamy layer prescribed by the State
government of Uttar Pradesh.

31. Applying the reasoning as given by the
Full Bench in the case of Gaurav Sharma
(supra) we are of the opinion that the
certificate relied upon and submitted by the
Appellant-Petitioner dated 06.03.2021 was
issued by the Tehsildar sufficiently certifies
and evidences that the Appellant-Petitioner
belongs to an O.B.C. group identified and
recognised by the State government of
Uttar Pradesh and further that she as per the
criteria prescribed by the State government
of Uttar Pradesh for exclusion under
creamy layer does not fall in the creamy
layer and hence, she is eligible and entitled
to claim reservation available to O.B.C.
category candidate.

32. Before parting with this case, we
may observe that benefit of the reservation
in
public
employment
to
different
disadvantaged section of the society is
permissible under the Constitution of India
as an affirmative action. It is not in dispute
that the Appellant-Petitioner was given
appointment while she claimed the benefit
of
reservation
available
to
O.B.C.
candidates in her selection to the post of
Constable (Civil Police) Uttar Pradesh
Police
Services,
merely
because
the
certificate produced by her was not in
(Praroop-1) though the certificate produced
by her, clearly evidences that she belongs
to an O.B.C. category as identified by the
State Government of Uttar Pradesh and
also that she does not get excluded as a
person belonging to creamy layer in terms
of the criteria laid down by the State
Government of Uttar Pradesh. For the said
purpose, it should not be taken aid of by the
State authorities for denying her otherwise
constitutionally
guaranteed
right
of
affirmative action.

33. The law enunciated in Special
Appeal Defective No. 274 of 2022 State of
UP versus Rinki And other 2022 lawsuit
(All) 1900 relied by the counsel for the
Appellant-Petitioner is fully applicable in
the instant matter and as such, we are in
full agreement of the same. Nothing has
been brought to our notice that the
judgement of Rinki & others (supra) is
being given any indulgence by the Hon'ble
Apex Court and as such, the same is
confirmed at this stage.

34. The Additional Chief Standing
Counsel so far the factual and legal aspect
of the matter, the same is not disputed that
the order and direction passed in the
judgement of Rinki and Other (supra) is not
in his knowledge.

35. Considering the facts and
circumstances of the case, we find that the
case of the petitioner is on similar footings.
The order passed by the learned Single
Judge cannot be sustained neither on the
ground
that
the
caste
certificate
as
submitted by the Appellant-Petitioner was
not within the time as stipulated and
extended by the recruitment Board, nor the
same was not on prescribed format.
Accordingly order dated 04.01.2023 is
hereby quashed and set-aside.

36. It has been intimated by the
learned counsels for the rival parties that
538 INDIAN LAW REPORTS ALLAHABAD SERIES
the selection process is going on, and as
such, it is hereby directed to the competent
authorities to accept the candidature of the
Appellant-Petitioner being the candidate of
O.B.C. category. After considering her merit
points which falls under the cut-off as secured
by the lowest merit holder of O.B.C.
Category.

37. In the light of above, the instant
intra court appeal is hereby allowed. The
respondents are directed to accept the O.B.C.
certificate submitted by the AppellantPetitioner and proceed with the process of
selection of the Appellant-Petitioner for the
post Suitable to the Appellant-Petitioner
under the advertisement.

38. Let aforesaid exercise be completed
within three weeks from the date of
production of certified copy of this order
before the competent authority.
----------
(2023) 4 ILRA 538
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.04.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 126 of 2022
alongwith other connected cases

Awadhesh Kumar Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C.

Service Law - Constitution of India, 1950Article 226 - Uttar Pradesh Industrial
Disputes Act, 1947-Bunch of writ petitions
filed, the first category of writ petitions
have erupted due to the re-fixation of the
pay-scale from 31.03.1989 to 18.05.1994,
which has resulted in issuance of the
impugned
notice/order
by
the
respondents/St., second category of writ
petition against notice for recovery of this
excess salary paid during the period from
this part-time tube well operators and
coercive
steps
for
recovery
like
attachment/with-holding
of
gratuity
payment
etc.-Impugned
order
is
in
violation of the principles of natural
justice as no opportunity of hearing been
given to the petitioners, before the payscale was re-fixed/reduced giving rise to
civil
consequences-Impugned
orders/
notice quashed-Matters remitted to the
competent
authority
to
evaluate
the
claims of the petitioners bearing in mind
the
various
competing
factors
&
observation
of
the
Hon'ble
CourtCompetent
Authority
shall
give
an
opportunity of explanation and/or hearing
to the writ petitioners before passing a
speaking order in the matter. (Para 13, 14,
58, 59, 60)

Petition disposed of. (E-15)

List of Cases cited:

1. (Sanjeevan Lal & ors. Vs Sate of U.P, through
Principal Secretary Irrigation Lucknow & ors.)
Writ-A- 22586 of 2019

2. Engineer-in-Chief, Irrigation Department, U.P.
& ors. Vs Makrand Singh & ors. Writ Petition No.
1502 (S/S) of 1992:

3. Suresh Chandra Tiwari & ors. Vs St. of U.P. &
ors.: Writ Petition No.3558 (S/S) of 1992

4. St. of U.P. Vs Mangra Pd. Verma & ors.
Special Leave Petition (C) No. 16219 of 1994

5. Rajendra Kumar Tewari & ors. Vs St. of U.P &
ors. Writ petition No. 1820/2002

6. St. of U.P Vs Roshan lal & ors. Review petition
No. 26/2012 and SLP (C) No. 5283/2011