By the Court.—The Mahatma Gandhi Kashi Vidyapith University, Varanasi is a State University governed by the provisions of the U.P. State Universities Act, 1973. The University published an advertisement No. 1 of 2009 dated 14th February, 2009 inviting applications for appointment on two posts of Lecturers, in Sociology reserved for the persons belonging to Other Backward Class (OBC). The petitioner applied for appointment. He was called for interview and was empaneled at Sl. No. 3. Dr. Arun Kumar Singh and Dr. Saumya Yadav empaneled at Sl.Nos.1 and 2, were appointed and have joined on 29th July, 2009.

2. By this writ petition the petitioner has challenged the selection of Dr. Arun Kumar Singh-respondent No. 5 as Lecturer in Sociology in OBC category on the ground that he falls in ‘creamy layer’, and is to be excluded from selection in the reserved category. Dr. Raj Bahadur Singh Verma, the father of Dr. Arun Kumar Singh is Professor in Lucknow University and was at one time the Head of the Department in Lucknow University.

3. We have heard Shri P.S. Baghel, learned Senior Counsel assisted by Shri Ashwini Singh for the petitioner. Shri Anil Tiwari appears for the Mahatam Gandhi Kashi Vidyapith, Varanasi. Shri Ahsok Khare, learned Senior Counsel assisted by Shri Rajendra Kumar Yadav appears for Dr. Arun Kumar Singh-respondent No. 5.

4. In the counter-affidavit of Shri Om Prakash, Asstt. Registrar, Mahatma Gandhi Vidyapith Varanasi, it is stated that the petitioner has alternative remedy of approaching the Chancellor by way of reference under Section 68 of the U.P. State Universities Act, 1973. He has taken part in the selection proceedings and had appeared in the interviews and thus he cannot challenge the selection proceedings.

5. In para 6 of the counter-affidavit it is stated that selection committee after taking into consideration all the records found the petitioner suitable alongwith two other candidates and was placed at Sl. No. 3 after Dr. Arun Kumar Singh and Dr. Saumya Yadav at Sl. Nos. 1 and 2. It is admitted in para 12 that the petitioner had requested for some information under the Right to Information Act, which was provided to him by letter dated 12.10.2009. The information regarding selection in which Dr. Arun Kumar Singh was placed at Sl. No. 1, Dr. Saumya Yadav at Sl. No. 2, Dr. Jay Prakash Yadav at Sl. No. 3 and Dr. Shyam Narain Verma at Sl. No. 4 was given to the petitioner.

6. In the rejoinder affidavit the petitioner has enclosed the information received by him from the Deputy Registrar (Accounts) of the Lucknow University, giving the pay scale and salary drawn by Dr. R.B.S. Verma (the father of Dr. Arun Kumar Singh) serving as Professor in the University in the pay scale of Rs. 37,400-67,000/- (10,000) with total salary payable to him at Rs. 90,331/- in the month of February, 2010. He has also annexed a letter of the Deputy Secretary, Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training dated 14th October, 2004 providing clarification regarding creamy layer amongst OBCs. Paragraphs 3, 6, and 9 relevant for the purposes of this case are quoted as below :

“3. The criteria prescribed for determining creamy layer status of sons and daughters of persons in Government service mutatis mutandis applies to the sons and daughters of persons holding equivalent or comparable posts in PSUs, Banks Insurance Organisations, Universities etc. and also holding equivalent or comparable posts and positions under private employment. The creamy layer status of the sons and daughters of employees of organizations where evaluation of the posts on equivalent or comparable basis has not been made is determined on the basis of ‘Income/Wealth Test’ given in the Schedule. The Income/Wealth Test prescribes that the sons and daughters of persons having gross annual income of Rs. 2.5 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth tax Ac