Hon’ble Yashwant Varma, J.—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, 2017(1) ADJ 538 (DB). 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 alongwith 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 and others, 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 and others v. Government 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