Yashwant Varma, J. - (1.) The present Full Bench came to be constituted for determination of the following three issues which stand formulated in the referral order dated 6 April 2017. "A. Whether the candidature of an OBC candidate is liable to be rejected on the ground of the caste certificate having been submitted after the last date for submission of applications ? B. Whether the decision in Arvind Kumar Yadav lays down and represents the correct position in law ? C. 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."
(2.) The order of reference itself came to be made in an intra court appeal challenging a judgment of a learned Single Judge dismissing a writ petition following the decision in Arvind Kumar Yadav v. U.P. Police Recruitment and Promotion Board Special Appeal No. 762 of 2016 decided on 5 December 2016 . Subsequent thereto, the learned Single Judge while considering a batch of writ petitions expressed doubt upon the correctness of the law as declared by the Division Bench in Arvind Kumar Yadav and by an order dated 1 March 2017 referred the matters for consideration to a larger Bench. It was pursuant to the said order that the writ petitions came to be tagged along with the lead special appeal and were placed for consideration before the Division Bench on 6 April 2017.
(3.) During the course of consideration of submissions there came to the fore the issue of an apparent conflict between the decision rendered in Arvind Kumar Yadav and the judgments rendered by two other Division Benches in Pravesh Kumar v. State of U.P. and two others Special Appeal Defective No.136 of 2017, decided on 1 March 2017 and Shubham Gupta v. Indian Overseas Bank Office, Chennai & Ors Writ Petition No.748( S/B) of 2014. In the referral order the Division Bench noted that while the decision in Shubham Gupta had come to be rendered before Arvind Kumar Yadav, the same had not been noticed therein. Insofar as the decision in Pravesh Kumar is concerned, the same although pronounced subsequent to Arvind Kumar Yadav, the Division Bench had failed to notice the latter judgment. This aspect was noticed in the referral order in the following terms: "The Division Bench while deciding Shubham Gupta observed:" Thus, before us, there are two views of the Supreme Court on the matter. The first one as propounded by the Supreme Court in the case of Bedanga Talukdar (supra) is that "there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement". The Supreme Court further held that "the relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India". The second view as propounded by the Supreme Court in the case of Raj Kumar Gijroya (supra) is that the candidature of those candidates, who belonged to the Scheduled Caste and Scheduled Tribes categories, could not be rejected simply on account of late submission of caste certificate. In the case of Pushpa (supra), which has been upheld by the Supreme court one another case of Tej Pal Singh & Ors v. Govt. of NCT of Delhi has been referred to in which the Delhi High Court held that "if a person is SC his is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by competent authority to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to 'SC' category and act thereon by giving the benefit to such candidate for his belonging to 'SC' category". The latest view accepted by the Supreme Court in the case of Raj Kumar Gijroya (supra) permits to accept the caste certificate even if it was submitted after the cut of date fixed therefor before publication of select list. Therefore, to our understanding, we proceed to accept the latest view of the Supreme Court laid down in the case of Raj Kumar Gijroya (supra) and quash the order impugned dated 26.04.2014 (Annexure No.1 to the writ petition). The writ petition stands allowed." In Pravesh Kumar the Division Bench took a similar view and summed up the legal position thus:" "Law on the subject of certificate being accepted after the last cut of date has been clarified by Apex Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Another reported in 2016 (4) SCC 754. In view of this, once certificate had been submitted on 18.02.2016, then the said certificate in question could not have been refused to be accepted, on the premises that it was submitted after last cut of date. Perusal of certificate would go to show that certificate in question has been issued verifying social status of appellant. Said certificate apart from describing that appellant hails from OBC category, also proceeds to look into annual income of the parents of the appellant continuous for last three years and it has been found by the authorities concerned that annual income of parent of appellant in last three years is not more than Rs. 8 lacs nor they are having property more than that as is provided under Income Tax Act 1957. Once Creamy Layer has been defined and as per the certificate, petitioner will have to be accepted as falling under 'Non Creamy Layer'. Said certificate was in reference to preceding three years, and as per the terms and condition of advertisement, such certificates were valid that has been produced as per the format dated 01.04.2015 uptill the last date. The certificate, as it could not have been refused to be accepted, accordingly has to be accepted as it is." The decision in Arvind Kumar Yadav, however, strikes a discordant view when it holds:" "So far as the judgment of the Apex Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Another [Civil Appeal No.1691 of 2016 (Arising Out of SLP (C) No. 27550 of 2012)] is concerned, we may only notice that the Apex Court judgment was not considering a case where the terms and conditions in the matter of certificate, being submitted in prescribed proforma for claiming the benefit of OBC category, had been provided for under the advertisement itself. The terms and conditions mentioned in the advertisement are binding upon all the appellants and have to be applied uniformly, learned Single Judge is correct in recording that the said judgment was clearly distinguishable to the facts of the present case." Since there appears to be a clear conflict between the views taken by the Division Benches in Pravesh Kumar, Shubham Gupta on the one hand and Arvind Kumar Yadav on the other, it appears appropriate for the present batch of matters being referred to a larger Bench for consideration.......";