Shyamal Kumar Sen, J. - (1.) THE facts involved in the present writ petition are that the petitioner, Dr. Rashmi Pal, for the purpose of admission in post -graduate course, appeared in U.P. Post Graduate Medical Entrance Examination, 2000 with roll number 2580 which took place on 16th January, 2000 at Kanpur. At that time 'Jat' community was not included in the list of Other Backward Classes (hereinafter referred to as the O.B.C.). The contention of the petitioner is that she comes from a backward community namely 'Gadariya' which is recognized as the O.B.C. and is shown as such in Schedule I attached with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 being U.P. Act No. 4 of 1994 (hereinafter referred to as the said Act). The petitioner passed M.B.B.S. examination in the year 1998 from Maharani Laxmi Bai Medical College, Jhansi and completed internship in the year 1999 from K.G. Medical College, Lucknow. The result of the above examination was published on 10th April, 2000 and the combined merit list of candidates of all categories i.e. General/O.B.C./Schedule Castes and Scheduled Tribes, who appeared in the examination was displayed on the notice board of the office of the opposite party No. 2 in which the roll number of the petitioner was placed at rank 978. The said result showed that 475 candidates have obtained 50% or above marks irrespective of their category and in all 1004 candidates including General/O.B.C./S.C. & S.T. have obtained 40% or above marks. On the basis of the said result the rank, of the petitioner amongst O.B.C. candidates comes approximately at 125. Subsequently, however, another category -wise list of General Candidates, O.B.C. candidates and S.C. candidates was prepared in which the name of the petitioner appeared at Sl. No. 146, whereas the rank of the petitioner in the list displayed on the notice board of the office of the opposite party No. 2 comes approximately at 125 amongst the O.B.C. candidates. It is the contention of the petitioner that subsequently, opposite party Nos. 2 and 3 called upon caste certificate from the 'Jat' candidates for giving them the benefit of reservation in the present examination, the counseling of which was scheduled on 14th, 15th and 16th May, 2000. The petitioner through her husband, Dr. V.S. Pal, gave a representation to the opposite parties 1, 2, 3 and 5 that the 'Jat' should not be included in O.B.C. in the said examination as the State Government had no authority to include them in the said list. The contention of the petitioner is that the notification dated 10th March, 2000 issued by the opposite party No. 4 is arbitrary, illegal and without authority or jurisdiction since no recommendation was made by the U.P. State Commission for Backward Classes Act, 1996 to that effect. It may be noted that the petitioner is already in O.B.C. category and in any way her right is not affected by including 'Jat' community in the said category. After taking into consideration the facts of the petitioner's case it appears that she has been selected for Pathology course. Learned Advocate General submits that, even assuming 'Jat' community is included in the O.B.C. category 12 posts are still remain vacant and in that view of the matter her right is not affected at all and as such we are of the view that the petitioner has no right to challenge the notification, which is a policy decision of the State Government. The Supreme Court in paragraph 117 of its decision in Indra Sawhney etc. v. Union of India and others : AIR 1993 SC 477 has, inter alia, held as follows: 117. We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non -inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefore. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non -official, and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each State constitutes such a body, which step would go a long way in redressing genuine grievances. Such a body can be created under clause (4) of Article 16 itself - -or under Article 16(4) read with Article 340 - -as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any, received. It should be open to the Government of India and the respective State Government to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chandrachud, C.J. in Vasant Kumar : AIR 1985 SC 1495, there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be.
(2.) IT may however, be noted that the State Government has created a Commission for the above purpose in the year 1994 and some of the Jats have already applied to the said Commission for inclusion of the Jat Community in O.B.C. category in the year 1994. The matter is pending since long. Last time the Commission took up the matter on 27th July, 1999 and the Commission asked for the report of the National Commission in that regard. It is the contention of the learned Advocate General that after every ten years the State Government should revise the list of O.B.C. category and after taking into consideration every factor the State Government felt that 'Jat' community should be included in the said category, as such, the aforesaid notification was issued. The contention of the learned counsel for the petitioner is that the principle laid down by the Supreme Court in Indra Sawhney's case (supra) has not been followed by the State Government in including the 'Jat' community in O.B.C. category and, as such, the said notification is illegal and arbitrary.
(3.) WE have considered the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and the U.P. State Commission for Backward Classes Act, 1996 and on consideration of all aspect of the matter it appears that the State Government is empowered to issue such notification. Section 9(1)(a) of the said Act, 1996 provides as follows: 9(1)(a) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the Schedule and hear complaints of wrong inclusion or non -inclusion of any backward class in the Schedule and tender such advice to the State Government as it deems appropriate.;