By the Court.—We have heard Shri Rakesh Sinha for the petitioners. Shri K.R. Sirohi appears for the respondent No. 1.

2. The applicant-respondent No. 1 appeared in the Civil Services Examination, 1999 claiming benefit of reservation belonging to ‘Ahir’ community notified as ‘Other Backward Classes’ by Government of India, Ministry of Welfare Resolution No. 12011/68/930BCC (C) dated 10.9.1993. He secured 290th rank in the list of candidates recommended for appointment. During scrutiny of his application form, it was observed that he may not be eligible to the benefit of reservation for OBCs since he falls in ‘creamy layer’, under Office Memorandum dated 8.9.1993, and is excluded, as he is son of a direct recruit Assistant Engineer in the Uttar Pradesh State Electricity Board, who was promoted to the post of Executive Engineer before the age of 40 years.

3. A notice was issued to the petitioner to show-cause as to why caste certificate declaring him as not being of the creamy layer be disallowed, and that his candidature as an OBC candidate be cancelled. The notice was issued on 10.9.2003.

4. It was stated in the notice that the Office Memorandum dated 8.9.1993 describes the category and classes to whom the rule of exclusion will apply, it provides that son (s) and daughter (s) of the parents of whom only the husband is a Class II officer (direct recruit) of the Central or State service and equivalent/comparable posts in Public Sector Undertakings, and he gets into Class I at the age of 40 or earlier shall not be entitled to get the benefit of reservation available to OBCs. The Government of U.P. vide letter dated 21.8.2003 had informed that the U.P. State Electricity Board Service of Engineers of, (a) Class-I posts of C.E., ACE, S.E., E.E (SG) and E.E and (b) Class-II posts of A.E.E. and A.E, and further as per information given by the Government of U.P. by its letter dated 13.1.2003, all Group-A and Group-B (Class-I and II) officers of the U.P. State Electricity Board have/had been getting the same benefits as Group-A and B officers of the State Government. The posts of Assistant Engineer and Executive Engineer to which the applicant’s father was directly recruited and to which he was promoted before the age of 40 years, are respectively Class II and Class I posts of U.P. State Electricity Board Engineers Service. The holders of these posts get all the benefits as Group-B and Group-A officers of the State Government. The father of the applicant Shri Sheo Charan Ram Yadav was appointed to the posts of Assistant Engineer by direct recruitment in U.P. State Electricity Board Service of Engineers and was promoted to the post of Executive Engineer of that service at the age of less than 34 years. (He was appointed on Class II post by direct recruitment and was promoted to a Class I post before the age of 40 years). Thus the applicant belongs to persons/sections (creamy layer) mentioned in Column-3 of the schedule to the Government of India, Department of Personnel and Training Office Memorandum dated 8.9.1993, and hence the applicant is not entitled to the benefit of reservation available to OBC candidates.

5. In reply to the notice the applicant stated that he is a candidate for Civil Services Examination 1999, and on that basis he has been allocated Indian Police Service. His OBC certificate was issued by the Tehsildar, Sagari and duly countersigned by the ADM, Azamgarh. He does not belong to the persons/sections (creamy layer). The certificate has been issued by the competent authority after proper verification. The provisions contained in Office Memorandum dated 8.9.1993 have not been properly represented and due to the omission of relevant section determining the applicable criteria it has led to erroneous exclusion. The provisions mentioned in para-3 of the notice have not correctly depicted the persons/sections mentioned in Column-3 of the schedule appended to Office Memorandum.

6. The petitioner further contended, t