Allahabad High Court
State Of U.P. Thru. Addl. Chief Secy. ... vs Rinki Yadav on 8 December, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 274 of 2022 Appellant :- State Of U.P. Thru. Addl. Chief Secy. Home (Police) Civil Secrt. Lko. And Others Respondent :- Rinki Yadav Counsel for Appellant :- C.S.C. Counsel for Respondent :- Deepak Singh 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 Writ-A 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.
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) उत्तर प्रदेश लोक सेवा (अनुसूचित जातियों, अनुसूचित जन जातियों और अन्य पिछड़े वर्गों के लिए आरक्षण) अधिनियम-1994 (समय-समय पर यथा संशोधित) की अनुसूची-दो के अनुसार क्रीमीलेयर के अन्तर्गत आने वाले उत्तर प्रदेश के अन्य पिछड़े वर्ग के अभ्यर्थियों को आरक्षण का लाभ अनुमन्य नहीं है । अन्य पिछड़े वर्ग के लिए जाति प्रमाण-पत्र ( प्रारूप-1) 01 अप्रैल, 2020 या उसके बाद का हो परन्तु अभ्यर्थी द्वारा इस भर्ती हेतु आवेदन करने की तिथि तक निर्गत होना चाहिए (अभ्यर्थी द्वारा आवेदन करने की अन्तिम तिथि 30-04-2021 को आवेदन करने की स्थिति में जाति प्रमाण- पत्र दिनांक: 30- 04-2021 तक निर्गत होना चाहिये)
8. Praroop-1 as per the advertisment is also extracted hereunder:-
प्रारूप-1 उत्तर प्रदेश के अन्य पिछड़े वर्ग के लिए जाति प्रमाण-पत्र शासनादेश संख्या-13/22/16/92/टीसी-iii-का-2/2014 दिनांक 17 दिसम्बर, 2014 प्रमाणित किया जाता कि श्री/श्रीमती/कुमारी........................सुपुत्र/ सुपुत्री /श्री......... निवासी ग्राम......... तहसील..........नगर......... जिला..............उत्तर प्रदेश राज्य की ............. पिछड़ी जाति के व्यक्ति हैं। यह जाति उत्तर प्रदेश लोक सेवा (अनुसूचित जातियों, अनुसूचित जनजातियों और अन्य पिछड़े वर्गों के लिये आरक्षण अधिनियम, 1994 (यथासंशोधित) की अनुसूची- एक के अन्तर्गत मान्यता प्राप्त हैं। यह भी प्रमाणित किया जाता है कि श्री/श्रीमती/कुमारी .................. ..पूर्वोक्त अधिनियम 1994 (यथासंशोधित) की अनुसूची-दो (जैसा कि उत्तर प्रदेश लोक सेवा) (अनुसूचित जातियों, अनुसूचित जनजातियों और अन्य पिछड़े वर्गों के लिये आरक्षण) (संशोधन) अधिनियम 2001 द्वारा प्रतिस्थापित किया गया है एवं जो उ०प्र० लोक सेवा (अनुसूचित जातियों, अनुसूचित जनजातियों और अन्य पिछड़े वर्गों के लिये आरक्षण) (संशोधन) अधिनियम 2002 द्वारा संशोधित की गयी है, से आच्छादित नहीं हैं। इनके माता पिता की निरन्तर तीन वर्ष की अवधि के लिये सकल वार्षिक आय आठ लाख रूपये या इससे अधिक नहीं है तथा इनके पास धनकर अधिनियम 1957 में यथा विहित छूट सीमा से अधिक सम्पत्ति भी नहीं है। श्री/श्रीमती/कुमारी......... तथा/अथवा उनका परिवार उत्तर प्रदेश के ग्राम.......तहसील.........नगर.. ......जिला...........में सामान्यतः रहता है। स्थान......
दिनांक......
मुहर....... हस्ताक्षर.. पूरा नाम. पदनाम... जिलाधिकारी/अतिरिक्त जिलाधिकारी/ सिटी मजिस्ट्रेट/परगना मजिस्ट्रेट/ 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:
उत्तर प्रदेश शासन FORM OF CERTIFICATE TO BE PRODUCED BY OTHER BACKWARD CLASSES APPLYING FOR APPOINTMENT TO POSTS UNDER THE GOVERNMENT OF INDIA जिला उन्नाव तहसील उन्नाव आवेदन क्र० 211560030073539 जारी दिनांक 15/04/2021 प्रमाणपत्र क्र०26321300698 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 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 08-09-93 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 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. 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 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 respondent-petitioner 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 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.
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, Kandu, Kashaudhan
2. Sonar, Sunar, Swarnkar
42. Bhathiara
3. Jat
43. Mali,Saini
4. Kurmi, Chanau, Patel, Patanwar, Kurmi-Mall, Kurmi-Seinthwar
44. Sweeper (Those not included in Scheduled Caste Category), Halalkhor
5. Giri
45. Lohar, Lohar-Saifi
6. Gujar
46. Lonia, Nonia, Gole-Thakur, Lonia- Chauhan
7.Gosain
47. Rangrez, Rangwa
8. Lodh, Lodha, Lodhi, Lot, Lodhi-Rajput
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, Sahu, Rauniar,Guandhi, Arrak
67. Dangi
28.Darji, Idrisi, Kakutstha
68. Dhakar
29. [x x x]
69. Gada
30.Naqqal
70. Tantawa
31. Nat (Those not included in Scheduled Castes category)
71.Joria
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, Ramgadhiya, Jangir, Dhiman
75. Murao, Murai, Maurya
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 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 appellant-State 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 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 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.
Order Date :- 8.12.2022 Rahul/RS