# State of U.P v. Rinki Yadav

- **Citation:** (2022) 12 ILRA 406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Special Appeal (D) No. 274 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-rinki-yadav-47877
- **Pages:** 11

## Headnote

Law
-
Appointment/
Recruitment - Benefit of Reservation -
Uttar
Pradesh
Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 - Schedule-I; Uttar
Pradesh
Janhit
Guarantee
Adhiniyam,
2011 (U.P. Act No. 3 of 2021) - Benefit of
reservation
in
public
employment
to
different
disadvantaged
sections
of
Society
is
permissible
under
the
Constitution of India as an affirmative
action. It is not in dispute that the respondentpetitioner 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). 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., group as identified
by the State 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 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 29)

The sole submission of the learned counsel
appearing for the appellant-State authorities is
that since the respondent-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 disentitled herself to
be given the benefit of being considered for the
benefit of reservation available to O.B.C
category candidates. (Para 11)

B. Certificate produced by a candidate
claiming
the
benefit
of
reservation
available to O.B.C. category candidate
should evidence twin facts (1) that the
candidate belongs to a group identified as
such by the State Government and (2)
that the candidate is not excluded as per
the criteria for creamy layer prescribed by
the State of Uttar Pradesh. (Para 27)

The certificate relied upon and submitted by the
respondent-petitioner, dated 15.04.2021 which
was issued by Tehsildar, Unnao sufficiently
certifies and evidences that the respondentpetitioner belongs to an O.B.C., group identified
and recognized by the State of Uttar Pradesh
and further that she as per the criteria
prescribed by the State of U.P. for exclusion
under creamy layer does not fall in the creamy
layer and hence she is eligible and entitle to
claim reservation available to O.B.C. category
candidate. (Para 28)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

406 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 406
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal (D) No. 274 of 2022

State of U.P. ...Appellant
Versus
Rinki Yadav ...Respondent

Counsel for the Appellant:
C.S.C.

Counsel for the Respondent:
Deepak Singh

A.
Service
Law
-
Appointment/
Recruitment - Benefit of Reservation -
Uttar
Pradesh
Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 - Schedule-I; Uttar
Pradesh
Janhit
Guarantee
Adhiniyam,
2011 (U.P. Act No. 3 of 2021) - Benefit of
reservation
in
public
employment
to
different
disadvantaged
sections
of
Society
is
permissible
under
the
Constitution of India as an affirmative
action. It is not in dispute that the respondentpetitioner 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). 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., group as identified
by the State 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 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 29)

The sole submission of the learned counsel
appearing for the appellant-State authorities is
that since the respondent-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 disentitled herself to
be given the benefit of being considered for the
benefit of reservation available to O.B.C
category candidates. (Para 11)

B. Certificate produced by a candidate
claiming
the
benefit
of
reservation
available to O.B.C. category candidate
should evidence twin facts (1) that the
candidate belongs to a group identified as
such by the State Government and (2)
that the candidate is not excluded as per
the criteria for creamy layer prescribed by
the State of Uttar Pradesh. (Para 27)

The certificate relied upon and submitted by the
respondent-petitioner, dated 15.04.2021 which
was issued by Tehsildar, Unnao sufficiently
certifies and evidences that the respondentpetitioner belongs to an O.B.C., group identified
and recognized by the State of Uttar Pradesh
and further that she as per the criteria
prescribed by the State of U.P. for exclusion
under creamy layer does not fall in the creamy
layer and hence she is eligible and entitle to
claim reservation available to O.B.C. category
candidate. (Para 28)

Special appeal dismissed. (E-4)

Precedent followed:

1. Gaurav Sharma Vs St. of U. P. & ors., 2017
(5) ADJ 494; 2017 (35) L.C.D. 1720 (Para
11)

Precedent cited:

1. Surendra Mohan Yadav Vs St. of U. P. & ors.,
Special Appeal No. 823 of 2018, decided on
05.09.2018 (Para 11)
12 All. State of U.P. Vs. Rinki Yadav
407
Present special appeal assails judgment
and order dated 09.09.2022, passed by
learned Single Judge in Writ-A No. 4689 of
2022.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Saurabh
Srivastava, J.)

Order on C.M. Application No. 01 of
2022(Application
for
Condonation
of
Delay)

1. Heard the learned Additional Chief
Standing Counsel for the appellant- State
authorities and Sri Deepak Singh, learned
counsel
representing
the
respondent-
petitioner.

2. Having regard to the averments
made
in
the
application
seeking
condonation of delay, we are satisfied that
the delay has sufficiently been explained.

3. Accordingly the application is
allowed and the delay in filing the special
appeal is hereby condoned.

Order on Special Appeal

1. The State authorities are in appeal
under Chapter VIII Rule 5 of the Rules of
the Court questioning the judgement and
order dated 09th September, 2022 passed
by the learned Single Judge whereby WritA No.4689 of 2022 filed by the respondent
- petitioner was allowed and the appellants
were directed to accept the OBC certificate
submitted by her and further to proceed
with the process of selection of the
respondent-petitioner
on
the
post
in
question, namely, the post of Sub Inspector
(Civil Police).

2.

The
writ
petition
by
the
respondent- petitioner was filed with the
prayer to direct the State authorities,
specifically the Uttar Pradesh Police
Recruitment
and
Promotion
Board
(hereinafter referred to as "the recruitment
and promotion board") to declare her result
treating her a candidate belonging to Other
Backward Class category.

3. 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 (PAC) and Second
Fire Officer. The number of vacancies
advertised through the said advertisement
are 9534. The respondent- petitioner is
presently working as Constable in Civil
Police and was recruited on the said post
under the reserved category of Other
Backward
Classes.
Pursuant
to
the
advertisement in question, she submitted
her
application
and
along with
the
application she also furnished a certificate
issued
by
the Tehsildar
Unnao,
on
15.04.2021, which is available at page-97
of the Special Appeal. By furnishing the
said certificate, the respondent- petitioner
claimed
that
her
candidature
for
recruitment to the post in question be
considered as a reserved category candidate
belonging to Other Backward Class.

4.

The
respondent-
petitioner
participated in the written examination and
also in the Physical Efficiency Test. The
final marks obtained by the respondent-
petitioner
on
the
basis
of
written
examination/ physical efficiency test are
287.03,
whereas
the
last
candidate
belonging to OBC category selected had
secured 285.03 marks. The last candidate in
the open category i.e. Unreserved category
selected, has secured 296.5 marks. These
cut off marks in different categories are in
respect of the female candidates.
408 INDIAN LAW REPORTS ALLAHABAD SERIES

5. At the time of verification of
documents, it was discovered that the
certificate submitted by the respondent-
petitioner for seeking benefit of reservation
in appointment in question was not in the
format as per the advertisement pursuant to
which selections were made.

6. Accordingly, the respondent -
petitioner 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 candidate selected had secured
296.5 marks whereas the marks obtained by
the respondent- petitioner were 287.03
hence she could not get selected in the open
category on the basis of her merit. It is not
denied by the appellant- State authorities
that the only reason for not treating the
respondent-petitioner'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.

7. Learned counsel for the appellant-
State Authorities has vehemently argued
that as per the Notes appended to Clause
5.4 of the advertisement, the benefit of
reservation to those candidates 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 learned State Counsel that the said
provision in the advertisement clearly
provides that the candidates belonging to
Other Backward Classes as mentioned in
Schedule-I of the Uttar Pradesh Public
Services
(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, the caste
certificate
to
be
submitted
by
the
candidates
claiming
the
benefit
of
reservation available to Other Backward
Classes shall be in a format (Praroop -1)
and should have been issued on or after
01st April, 2020 but till 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 01st April, 2020 and 30the
April, 2021 for the reason that 30th April,
2021 was the last date as per the
advertisement to make the application.
Note 3 appended to Clause 5.4 to the
advertisement is extracted hereunder :-

(3) उिर प्रदेश लोक सेवा (अिुसूनचत जानतयों,
अिुसूनचत जि जानतयों और अन्य नपछड़े वगों के
नलए आरक्षण) अनधनियम-1994 (समय-समय
पर यथा संशोनधत) की अिुसूची-दो के अिुसार
िीमीलेयर के अन्तगमत आिे वाले उिर प्रदेश के
अन्य नपछड़े वगम के अभ्यनथमयों को आरक्षण का
लाभ अिुमन्य िहीं है । अन्य नपछड़े वगम के नलए
जानत प्रमाण-पत्र ( प्रारूप-1) 01 अप्रैल, 2020
या उसके बाद का हो परन्तु अभ्यथी द्वारा इस
भती हेतु आवेदि करिे की नतनथ तक निगमत
होिा चानहए (अभ्यथी द्वारा आवेदि करिे की
अन्धन्तम नतनथ 30-04-2021 को आवेदि करिे
की न्धस्थनत में जानत प्रमाण- पत्र नदिांक: 30- 042021 तक निगमत होिा चानहये)

8. Praroop-1 as per the advertisment
is also extracted hereunder:-

प्रारूप-1

उिर प्रदेश के अन्य नपछड़े वगम के नलए
जानत प्रमाण-पत्र
12 All. State of U.P. Vs. Rinki Yadav
409

शासिादेश संख्या-13/22/16/92/टीसी-iiiका-2/2014 नदिांक 17 नदसम्बर, 2014

प्रमानणत
नकया
जाता
नक
श्री/श्रीमती/कुमारी........................सुपुत्र/ सुपुत्री
/श्री.........
निवासी
ग्राम.........
तहसील..........िगर......... नजला..............उिर
प्रदेश राज्य की ............. नपछड़ी जानत के
व्यन्धक्त हैं। यह जानत उिर प्रदेश लोक सेवा
(अिुसूनचत जानतयों, अिुसूनचत जिजानतयों और
अन्य नपछड़े वगों के नलये आरक्षण अनधनियम,
1994 (यथासंशोनधत) की अिुसूची- एक के
अन्तगमत मान्यता प्राप्त हैं। यह भी प्रमानणत
नकया
जाता
है
नक
श्री/श्रीमती/कुमारी
..................
..पूवोक्त
अनधनियम
1994
(यथासंशोनधत) की अिुसूची-दो (जैसा नक उिर
प्रदेश
लोक
सेवा)
(अिुसूनचत
जानतयों,
अिुसूनचत जिजानतयों और अन्य नपछड़े वगों के
नलये आरक्षण) (संशोधि) अनधनियम 2001 द्वारा
प्रनतस्थानपत नकया गया है एवं जो उ०प्र० लोक
सेवा (अिुसूनचत जानतयों, अिुसूनचत जिजानतयों
और अन्य नपछड़े वगों के नलये आरक्षण)
(संशोधि) अनधनियम 2002 द्वारा संशोनधत की
गयी है, से आच्छानदत िहीं हैं। इिके माता नपता
की निरन्तर तीि विम की अवनध के नलये सकल
वानिमक आय आठ लाख रूपये या इससे अनधक
िहीं है तथा इिके पास धिकर अनधनियम 1957
में यथा नवनहत छूट सीमा से अनधक सम्पनि भी
िहीं है। श्री/श्रीमती/कुमारी......... तथा/अथवा
उिका
पररवार
उिर
प्रदेश
के
ग्राम.......तहसील.........िगर..
......नजला...........में सामान्यतः रहता है।
स्थाि......
नदिांक......
मुहर....... हस्ताक्षर..
पूरा िाम.
पदिाम...

नजलानधकारी/अनतररक्त नजलानधकारी/

नसटी
मनजस्ट्रेट/परगिा
मनजस्ट्रेट/
तहसीलदार

9. The caste certificate which was
submitted by the respondent- petitioner
claiming
the
benefit
of
reservation
available to the candidates belonging to
other backward classes which is available
at page 97 of the special appeal is also
extracted herein below:

उिर प्रदेश शासि

FORM OF

CERTIFICATE TO BE PRODUCED
BY OTHER BACKWARD CLASSES

APPLYING FOR APPOINTMENT
TO
POSTS
UNDER
THE
GOVERNMENT OF INDIA

नजला उन्नाव

तहसील उन्नाव

आवेदि ि० 211560030073539 जारी
नदिांक 15/04/2021

प्रमाणपत्र ि०26321300698

This is to certify that RINKI YADAV
sond/aughter of RADHELAL YADAV
mother's name RAMKANTI YADAV R/o
84,KUDDU KHERA SINGROS Tehsil
उन्नाव Distict उन्नाव in the Uttar Pradesh
state belongs to the Ahir Community which
is recognized as a backward class under the
Government Of India, Ministry of Welfare
Resolution No. 12011/68/93-BCC(C) dated
10th Sept. 1993, published in the Gazelle of
India Extra Ordinary Part-I Section-I Dated
13th Sept, 1993 and onwards till date.

RINKI YADAV and/or his family
ordinarily reside(s) in the 84,KUDDU
KHERA SINGROSI of the Tehsil उन्नाव
District उन्नाव of the Uttar Pradesh state
410 INDIAN LAW REPORTS ALLAHABAD SERIES

This is also to certify that he/she does
not
belongs
to
the
persons/sections
(Creamy Layer) mentioned in column 3 of
the schedule to the Government Of India,
Department of Personnel & Training
O.M.No. 36012/22/93 Estt(SCT) dated 0809-93 or the latest notification of the
Government of India.which is modified
vide OM No. 36033/3/2004 Estt.(Res.)
dated 09/03/2004 and further modified vide
OM No. 36033/3/2004-Estt. (Res.) dated
14/10/2008 or the latest notification of the
Government of India.

10. The said certificate was issued on
15th April 2021 by the Tehsildar and
certifies that the respondent - petitioner
daughter of Radhey Lal Yadav, whose
mother's name is Ram Kanti Yadav belongs
to Ahir community which is recognized as
a Backward Class under the Government of
India Resolution dated 10th September,
1993 published in the Gazette dated 13th
September, 1993. It also certifies that she
does not belong to the persons/sections
(creamy layer) mentioned in the Office
Memorandum issued by the Government of
India, Department of Personnel & Training,
dated 8.9.1993 as modified by Office
Memorandum
dated
9.3.2004
and
14.10.2008 or the latest notification of the
Government of India.

11. The sole submission of the learned
counsel appearing for the appellant-State
authorities is that since the respondentpetitioner 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 disentitled
herself to be given the benefit of being
considered for the benefit of reservation
available to O.B.C category candidates.
Learned counsel for the appellant-State
authorities has relied upon a Division
Bench of this court in the case of Surendra
Mohan Yadav vs. State of Uttar Pradesh
and others decided on 5th September,
2018 (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 5th September, 2018
places reliance on the Full Bench judgment
of this court in the case of Gaurav Sharma
vs. State of Uttar Pradesh and others
reported
in
2017
(5)
A.D.J.
494,
equivalent citation of which is 2017 (35)
L.C.D 1720.

12. The issue which has 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
posts under the Government of India, the
respondent-petitioner disentitled herself for
claiming such benefit.

13. 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 a certification to
two facts, (1) that the candidate does not
12 All. State of U.P. Vs. Rinki Yadav
411
fall foul of creamy layer and (2) that the
certificate ought to have been issued by the
competent authority between the period 1st
April 2020 and 30th April, 2021.

14. So far as the caste certificate
furnished by the respondent-petitioner is
concerned it was issued by the competent
authority i.e, the Tehsildar concerned on
15th April, 2021, which date falls within
the period prescribed for obtaining the
certificate as per the stipulation made in the
advertisement itself i.e, between 1st April
2020 and 30th April, 2021. The certificate
relied upon by the respondent-petitioner
also clearly certifies that she does not fall
foul of creamy layer as per the notification
issued by the Government of India in the
department of Personnel & Training by
means of the office memorandum dated 8th
September
1993
or/and
the
latest
notifications including the notifications
dated 9th March, 2004 and 14th October,
2008.

15. 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
relevant to point out that 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 respondent-petitioner obtained
the caste certificate and submitted the same
for seeking benefit of the reservation
available to O.B.C category candidates.
The format in which the respondentpetitioner
obtained
the
certificate
is
prescribed by the State of Uttar Pradesh.
This fact is not in dispute, however, as
stated by the learned counsel for the
appellant-State authorities, the said 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. The caste certificate relied upon
by the candidate in the case of Gaurav
Sharma has been extracted in para-5 of the
said judgement which is the same in which
the respondent-petitioner 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 a caste
certificate is only a recognition of an
existing status, an O.B.C. candidate
necessarily must establish the twin
conditions of belonging to an O.B.C.
group recognized by the State and also
that he does not fall within the creamy
layer. In paragraph-26 of the judgment in
the case of Gaurav Sharma, the Full Bench
has further observed that, "while it is true
that an O.B.C. candidate even he
produces a certificate which evidences
that he does not stand excluded from the
benefits of reservation in terms of office
memorandum dated 14th October, 2008,
that issue still remain as to whether he is
an O.B.C, as specified and identified by
the State of Uttar Pradesh. The Full
Bench further observes that, "although the
certificate initially submitted by the O.B.C,
candidates before the court did not stand
excluded by virtue of standards fixed by the
office memorandum dated 14th October,
2008, the certificate did not evidence them
belonging to an O.B.C, as identified in the
State of Uttar Pradesh". The court further
goes on to observe that, "for the purposes
of seeking the benefit of reservation it is
imperative for a candidate to establish
that he belongs to O.B.C, as recognized
and identified by the State concerned
412 INDIAN LAW REPORTS ALLAHABAD SERIES
and further that he/she does not fall
within the field of exclusion".

16. Finally answering the issue (C), it
has been said by the Full Bench in para-27
of the report that:

"27. We accordingly answer Question
No. 1 in the negative and hold that an
OBC candidate is not exempt from the
rigours of a cut off or last date prescribed
in an advertisement or recruitment notice.
We further declare that Arvind Kumar
Yadav correctly articulates the law on the
issue and overrule Pravesh Kumar and
Shubham Gupta. Insofar as Question No.
3 is concerned, we hold that although
there is no repugnancy in the norms fixed
by the Union and State Government, the
same would have no favourable impact
upon the eligibility of a candidate unless
he also furnishes a certificate evidencing
him as belonging to the OBC category as
recognised and identified by the State."

17. 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 in so far as the
exclusion
under
the
creamy
layer
is
concerned, the respondent-petitioner could
not be excluded for the reason that the
certificate furnished by her clearly states that
she does not stand excluded from the rigorous
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 for exclusion under the creamy layer
component is concerned there does not exist
any repugnancy between the criterion laid
down by the State Government and the
Central Government.

18. 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
rigorous of creamy layer he/she would still
have to possess a certificate evidencing that
he/she belongs to an O.B.C. group as
identified and recognized by the State of
Uttar Pradesh. For considering the aforesaid
aspect, what we find is that the certificate
furnished by the respondent-petitioner dated
5.4.2021 which was issued by the competent
authority i.e, the Tehsildar clearly certifies
that she belongs to "Ahir" community which
is recognized as backward class under the
Government of India Resolution dated
10.9.1993 which was published in the
Gazette of India, extraordinary dated 13th
September, 1993.

19. To test as to whether the said
certificate would suffice to evidence that
the respondent-petitioner belongs to a
group
identified,
recognized
and
categorized by the State of Uttar Pradesh
as well as O.B.C, we need to examine
said identification, categorization and
recognition made by the Government of
India and State of Uttar Pradesh. If in this
particular case i.e, in respect of "Ahir"
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
of Uttar Pradesh, we are very clear in our
mind that the certificate furnished by the
respondent-petitioner clearly will suffice
to certify that the respondent-petitioner
belongs to a community identified by the
State of Uttar Pradesh as 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
of Uttar Pradesh.
12 All. State of U.P. Vs. Rinki Yadav
413

20. The Schedule-1 appended to
Reservation Act 1994 is referable to
Section-2 (b) of th said Act. Section 2(b) of
the Reservation Act defines other backward
classes of citizens to mean the backward
classes of citizens specified in Schedule-1.
Schedule-1 appended to the Reservation
Act 1994 is extracted herein below:-

[SCHEDULE-I]

[See Section 2(b)]

1. Ahir, Yadav, Gwala, Yaduvanshiya

41.
Bhurji,
Bharbhunja,
Bhooj,
Kashaudhan

2. Sonar, Sunar, Swarnkar

42. Bhathiara

3. Jat 43. Mali,Saini

4. Kurmi, Chanau, Patel, Patanwar, 44.
Sweeper (Those not included in

Kurmi-Mall,Kurmi-Seinthwar
Scheduled Caste Category),Halalkhor

5. Giri 45. Lohar, Lohar-Saifi
 6. Gujar 46. Lonia, Nonia, GoleThakur, Lonia- Chauhan

7.Gosain 47. Rangrez, Rangwa
 8. Lodh, Lodha, Lodhi, Lot, LodhiRajput 48. Marchcha
 9. Kamboj 49. Halwai, Modanwal

10.Arakh, Arakvanshiya 50. Hajjam,
nai, Salmani, Savita, Sriwas

11.Kachchi,
Kachchi-Kushwaha,
Shakya 51. Rai Sikh

12.[xxx]52.
Sakka-Bhisti,
Bhisti-
Abbasi

13.[xxx]
53.
Dhobi
(Those
not
included in the scheduled castes or
scheduled tribes category

14.Kisan
54.
Kasera,Thathera,
Tamrakar

15.Koeri 55. Nanbai

16[xxx] 56. Mirshikar

17.Kasgar 57. Shekh Sarwari (Pirai),
Peerahi

18.Kunjra or Raeen 58. Mev,
Mewati

19.Gareria, Pal,Vaghel 59. Koshta/
Koshti

20.Gaddi, Ghoshi 60. Ror

21.Chikwa, Qassab Qureshi, Chak 61.
Khumra, Sangatarash, Hanseri

22.Chhippi, Chipa 62 Mochi

23.Jogi 63. Khagi

24.Jhoja 64. Tanwar Singharia

25.Dhafali 65. Katuwa

26.Taraoli,
Barai,
Chaurasia
66.
Maheegeer

27.Teli, Samani, Rogangar, 67. Dangi
Sahu, Rauniar,Guandhi, Arrak

28.Darji, Idrisi, Kakutstha 68. Dhakar
 29. [x x x] 69. Gada

30.Naqqal 70. Tantawa

31. Nat (Those not included in
71.Joria
 Scheduled Castes category)

32. Naik 72. Patwa, Patahra,
 Patehara, Deovanshi

33. Faqir 73. Kalal, Kalwar, Kalar

34. Banjara, Ranki, Mukeri, Mukerani
74. Manihar, Kacher Lakhara

35.
Barhai,
Saifi,
Vishwakarma
Panchal, 75. Murao, Murai, Maurya
Ramgadhiya, Jangir, Dhiman

36.Bari 76. Momin (Ansar)

37. Beragi 77. Muslim Kayastha

38.[x x x] 78. Mirasi

39.Biyar 79. Naddaf (Dhuniya),
Mansoori, Kandere, Kadera, Karan (Karn)].

40.[x x x]

21. A perusal of afore quoted
Schedule-1 appended to 1994 Reservation
Act clearly reveals that entry-1 therein
mentions
the
community
"Ahir".
Accordingly as per the identification and
recognition made by the State 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
"Ahir" community is included in the
414 INDIAN LAW REPORTS ALLAHABAD SERIES
Schedule-1 at entry-1 and hence in terms of
the identification made by the State of Uttar
Pradesh for providing reservation available
to O.B.C category candidates, persons
belonging
to
"Ahir"
community
are
identified and recognized for the said
purpose.

22. If we examine the notification
published
in
the
Gazette
of
India,
extraordinary dated 13th September, 1993
which publishes the resolution of the
Government of India dated 10th September,
1993 what we find is that in the State of
Uttar Pradesh Ahir community is listed at
Serial No.1. Accordingly, on examination
of
the
identification
made
by
the
Government of India as also by the State of
Uttar Pradesh for the purposes of inclusion
of a particular group or community
amongst the Other Backward Classes or
citizens
entitle
to
seek
benefit
of
reservation available to them, we find that
there does not exist any repugnancy as far
as "Ahir" community is concerned. The
reason for us to observe that there is no
such repugnancy is that "Ahir" community
finds mentioned in the notification of the
Government of India dated 13th September
1993 which published the resolution of the
Government of India dated 10th September
1993 and it is also included at Entry-1 of
Schedule-1 appended to 1994 Reservation
Act passed by the Legislature of State of
Uttar Pradesh.

23. Learned counsel for the appellantState has also made his submissions based
on the provisions contained in Section-9 of
the Reservation Act 1994 which provides
that for the purposes 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.

24.

Learned
State
counsel
representing the appellant-State authority
does not dispute that the authority who has
issued the caste certificate dated 15th April,
2021
which
was
furnished
by
the
respondent-petitioner claiming the benefit
of reservation available to OBC category
candidates has been issued by the Tehsildar
who is the competent authority as provided
by the State Government for the purposes
of issuing caste certificate. The Schedule
appended to the Uttar Pradesh Janhit
Guarantee Adhiniyam, 2011 ( U.P. Act
No.3 of 2021) also prescribes the Tehsildar
to be the authority competent to issue caste
certificate.

25. The only reservation expressed by
the learned State counsel to the caste
certificate dated 15th April, 2021 is that it
is not issued in the manner prescribed by
the State Government. The basis for such
an argument as advanced by learned State
Counsel is that the certificate dated 15th
April, 2021 which had been issued by the
Tehsildar clearly mentioning therein that it
is a certificate to be produced by other
backward classes applying for appointment
to post under the Government of India. His
submission is that the format as appended
to the advertisement (Praroop-1) is the
form prescribed by the Government for
issuance of caste certificate to those who
apply for appointment to the post under the
State of Uttar Pradesh.

26. It is not in dispute that both the
formats i.e, the format in which the
respondent-petitioner had obtained the
certificate which was issued to her by
Tehsildar and the format as appended to the
advertisement have been prescribed by the
State of Uttar Pradesh itself. The first
format is for a certificate to be produced by
O.B.C. category candidate applying for
12 All. State of U.P. Vs. Rinki Yadav
415
appointment to the posts 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 posts 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 a person belonging
to creamy layer is concerned there does not
exist
any
repugnancy
between
the
prescriptions made for the said purpose by
the Government of India and by the State
of Uttar Pradesh. The issue as to whether
there is any repugnancy, so far as any
person belonging to "Ahir" 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 neither has it been
discussed and considered. However, if we
examine the reasoning given by the Full
Bench for recording that no repugnancy
exists so far as the criteria for exclusion of
a candidate on account of creamy layer is
concerned and apply the same to examine
as to whether there is any repugnancy
between the identification of a particular
community as O.B.C, by the State of Uttar
Pradesh and by the Government of India,
we find that as far as "Ahir" community is
concerned there does not exist any
repugnancy. "Ahir" community is included
as O.B.C. in the notification issued on
13.09.1993 on the basis of Resolution of
the Government of India dated 10th
September 1993 as published in the Gazette
dated 13th September 1993. Similarly
"Ahir" community is mentioned at Entry-1
of Schedule-1 of the 1994 Reservation Act.
Hence there is no discrepancy in inclusion
of "Ahir" community amongst the Other
Backward Classes exist in case any person
belonging to "Ahir" community claims
reservation available to O.B.C, category
candidates for appointment to posts either
under the Government of India or under the
State of Uttar Pradesh.

27. We may reiterate the basic
principle which runs as a common thread
through out the judgment of the Full Bench
of this court in the case of Gaurav Sharma
(supra) and the thread is that certificate
produced by a candidate claiming the
benefit of reservation available to O.B.C.
category candidate should evidence twin
facts (1) that the candidate belongs to a
group identified as such by the State
Government and (2) that the candidate is
not excluded as per the criteria for creamy
layer prescribed by the State of Uttar
Pradesh.

28. Applying the reasoning as given
by the Full Bench in the case of Gaurav
Sharma (supra), we, accordingly, are of
the opinion that the certificate relied upon
and submitted by the respondent-petitioner,
dated 15th April 2021 which was issued by
Tehsildar, Unnao sufficiently certifies and
evidences that the respondent-petitioner
belongs to an O.B.C, group identified and
recognized by the State of Uttar Pradesh
and further that she as per the criteria
prescribed by the State of Uttar Pradesh for
exclusion under creamy layer does not fall
in the creamy layer and hence she is
eligible and entitle to claim reservation
available to O.B.C. category candidate.

29. Before parting with this case, we
may observe that benefit of reservation in
public
employment
to
different
disadvantaged sections
of Society is
permissible under the Constitution of India
as an affirmative action. It is not in dispute
that the respondent-petitioner was given
416 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment while she claimed the benefit
of
reservation
available
to
O.B.C.
candidates in her selection to the post of
Constable (Civil Police). 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, group as identified by the State
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 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.

30. For the reasons aforesaid, we do
not find any good ground to interfere with
the
judgment
and
order
dated
9th
September 2022 passed by learned Single
Judge in Writ-A No.4689 of 2022. The
special appeal is hereby dismissed.

31. The appellants shall comply with
the said order date 9th September 2022
passed by the learned Single Judge at the
earliest.

32. There will be no order as to
costs.
----------
(2022) 12 ILRA 416
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 403 of 2019
with
Special Appeal Nos. 399 of 2019, 660 of
2020(Allahabad), 465 of 2020(Allahabad),463 of
2020(Allahabad), & 775 of 2020(Allahabad)
State of U.P. ...Appellant
Versus
Anurag & Ors. ...Respondents

Counsel for the Appellant:
Sri Ajay Kumar Mishra, Advocate General, Mr.
M.C. Chaturvedi, Addl. Advocate General, Mr.
Suresh Singh, Addl. C.S.C. in person, Dr. L.P.
Mishra, Sr. Advocate with Mr. Sarvesh Dubey,
Advocate and Mr. Ran Vijay Singh, Addl. C.S.C.
through V.C.

Counsel for the Respondents:
Mr. H.N. Singh, Senior Advocate with Mr.
Rishabh Srivastava and Ms. Durga Tiwari, Mr.
A.P. Singh, Mr. V.P. Singh, Ms. Geeta Chauhan,
Ms. Pratima Rani, Ms. Richa Singh, Mr.
Satyendra Kumar Om, Advocates in person and
Mr. Mukund Madhav Asthana, Mr. Hemant
Kumar Mishra, Ms. Surangama Sharma and Ms.
Meenakshi Singh Parihar, Advocates through V.C.

A. Education/Service Law - Appointment
- Honorarium - Right of part time
Instructors engaged to teach children in
Upper Primary Schools on contract - The
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009:
Section 1(3), 2(f), 7 - The decision of the
Project Approval Board, as already said,
to remunerate part time Instructors @
Rs.17,000/- per month was for the year
2017-18 and not in perpetuity. The
direction that goes beyond that period
of time cannot at all be countenanced -
The learned Single Judge was not right in
issuing a mandamus in perpetuity, based on
the decision of the Project Approval Board
dated 27.03.2017, to pay the writ petitioners
honorarium @ Rs.17,000/- per month. The
proposal to pay honorarium @ Rs.17,000/-
per month was accepted by the Project
Approval Board as part of the recurring
expenditure under the head of honorarium,
payable to part time Instructors for the year
2017-18. The decision of the Project Approval
Board was taken on the basis of a proposal by
the
State
Government
to
increase
the
honorarium of part time Instructors to
Rs.17,000/- per month for the year 2017-18.
Decisions about the recurring expenditures of
the project, that is to say, Sarva Shiksha
Abhiyan are taken for each financial year.