JUDGMENT Hon’ble Sudhir Agarwal, J.—Since the pleadings are complete, as requested and agreed by learned counsel for the parties the matter has been heard and is being decided finally under the Rules of the Court at this stage. 2. The facts in brief giving rise to the present dispute are as follows. The petitioner’s father, a Class IV employee in Police Department, district Sonbhadra is said to be residing thereat permanently. He settled at Churk, Tehsil Robertsganj, alongwith his family members. The name of the petitioner and other family members are shown in the voter list of Nagar Panchayat, Churk and the petitioner’s family has also received ration card in the name of the petitioner’s father. The petitioner claims to have born at Churk, District Sonbhadra. Prior to settling at Churk, the petitioner’s father’s ancestors were resident of village Machhna Gaon, Tehsil Dewsar, District Sidhi, Madhya Pradesh wherefrom they shifted and settled in district Sonebhadra (U.P.). The petitioner’s family belonged to the caste of ‘Kalar’ which is included in the list of Other Backward Classes (hereinafter referred to as “the OBC”) of the State of Madhya Pradesh. 3. On 2.6.2004 a caste certificate was issued to the petitioner by the concerned authorities in District Sidhi (State of M.P.) verifying his caste as ‘Kalar’ notified on 26.12.1984 at serial No. 42 in the list of Schedule Caste/Schedule Tribe and OBC for the State of M.P. Respondent No. 2 advertised vacancies of Assistant Operators in Police Radio Department of the State of U.P. in 2004 pursuant whereto vide application dated 3.9.2004 the petitioner also applied claiming himself as a member of OBC and in support thereof the caste certificate issued by the competent authority of District Sidhi (M.P.) was appended. The petitioner also disclosed his permanent residence as village Machhna Gaon District Sidhi (M.P.) and submitted his caste certificate. He was allowed to participate in the selection process consisting of preliminary test, physical test, main/written test and interview. Treating him an OBC candidate he was given age relaxation since on the cut off date on 1.7.2004 he was above the prescribed age of 21 years being more than 23 years of age. He was allowed to participate in the selection process consisting of preliminary test, physical test, main/written test and interview. Treating him an OBC candidate he was given age relaxation since on the cut off date on 1.7.2004 he was above the prescribed age of 21 years being more than 23 years of age. He was declared qualified in the written test and was called for interview on 19.8.2006 but was disallowed to participate in interview on the ground that he was overage and not entitled for benefit of reservation applicable to OBC category since his caste certificate was that of State of M.P. and a reserved category of another State cannot claim benefit of reservation in the State of U.P. 4. It is submitted that the above decision of the respondents is arbitrary and discriminatory, inasmuch as, in the advertisement it was nowhere provided that the caste certificate if issued by another State, the benefit thereunder would not be applicable to the candidate concerned. He on the alternative, submitted that in the notification of ‘OBC’ published in the State of U.P. on 16.2.2003 the list at serial No. 73 includes ‘Kalar’ meaning thereby, in the State of U.P. also ‘Kalar’ is included in the list of OBC and, therefore, the petitioner ought not have been denied the status of OBC nearly because he had submitted a certificate issued by an authority in the State of M.P. verifying his caste as ‘Kalar’. 5. In the counter-affidavit, the respondents have set up a case that reserved category candidates of other States are not entitled for the benefit of reservation in the State of U.P. on the basis of inclusion of their castes in the list of reserve category of those States. It is also submitted in para 5 of the counter-affidavit that as per Government Order dated 23.3.1994 (Annexure CA 4 to the counter-affidavit) ‘Kalar’ is not OBC for the purpose of State of U.P. having not been included therein, and, therefore, the petitioner is not entitled for the benefit of concession. It is also submitted in para 5 of the counter-affidavit that as per Government Order dated 23.3.1994 (Annexure CA 4 to the counter-affidavit) ‘Kalar’ is not OBC for the purpose of State of U.P. having not been included therein, and, therefore, the petitioner is not entitled for the benefit of concession. It is, therefore, contended that petitioner was wrongly allowed to participate in the selection but as soon as it was revealed to the respondents that he was wrongly allowed benefit of OBC on the basis of a certificate issued by an authority of the State of M.P. , though in the list of OBC in the State of U.P. caste ‘Kalar’ was not included in the list of OBC, the error was rectified and he was not permitted in selection thereon. 6. I have heard learned counsel for the parties and perused the record. 7. A copy of the advertisement has been filed as Anenxure SA-1 to the supplementary affidavit published in daily newspaper Jansatta dated 19.8.2004. According to the aforesaid advertisement, applications were invited for 171 vacancies of Assistant Operator in U.P. Police Radio Service and the last date for submission of application was 15.9.2004. The age limit on 1.7.2004 was minimum 18 years and maximum 22 years relaxable in accordance with the relevant Government Orders. The physical ability and fee for examination is also prescribed. Fee for examination is different for general and reserved category candidates. For general and OBC it is same, while it is different for SC/ST candidates. The age limit on 1.7.2004 was minimum 18 years and maximum 22 years relaxable in accordance with the relevant Government Orders. The physical ability and fee for examination is also prescribed. Fee for examination is different for general and reserved category candidates. For general and OBC it is same, while it is different for SC/ST candidates. The application form required to be filled in by the candidate is supposed to enclose the following documents as per the advertisement : ÞlayXud % gkbZLdwy ls ysdj vfUre ijh{kk ds Áek.ki=ksa rFkk vadi=ksa dh lR;kfir Áfr rFkk pfj=&i= ¼tgka ls vfUre fk{kk ÁkIr dh gks½ ,oa ikliksVZ lkbt ds nks LoÁek.khr uohure QksVksxzkQ ds lkFk Ánsk ds fdlh tuin ds iqfyl v/kh{kd dk;kZy; esa vkosnu i= HkstsaA uksV % ¼1½ vkosnu&i= ds lkFk ÁR;sd vH;FkhZ@vH;fFkZuh dks Lo;a fy[kdj ;k Áek.k&i= uRFkh djuk gksxk fd og fookfgr gS vFkok vfookfgrA ;fn fookfgr gks ¼dsoy iq:"k vH;FkhZ½ rks ;g Hkh fy[kk tk;s fd thfor iRuh ,d gS efgyk vH;FkhZ fdlh ,sls iq:"k dh iRuh ugha gksuh pkfg, ftlds igys ls dksbZ thfor iRuh gksA blh Ádkj efgyk vH;fFkZuh ;fn fookfgr gks rks ;g Hkh fy[kk tk;s fd thfor ifr ,d gSAÞ “Enclosures : Send the application form to the office of the Police Superintendent of any district of the State alongwith attested copies of certificates and marksheets from High School upto the last examination, character certificate from the institution last attended and two self attested latest passport size photographs. Note (1) Alongwith the application form every applicant will have to give in writing or attach a certificate whether he or she is married or unmarried. If married (in case of only male candidate) it should be written that he has only one living wife. A female candidate must not be wife of such a person who already has a wife who is alive. Likewise, if a female applicant is married, it should be written that she has only one living husband.” (Translation in English by Court) 8. From the advertisement it is thus evident that caste certificate was not necessary to be included alongwith the application form though in the application form itself in clause 8 it was mentioned that the candidates of reserved category should annex caste certificate on prescribed format. The petitioner submitted his application form showing his caste as OBC. From the advertisement it is thus evident that caste certificate was not necessary to be included alongwith the application form though in the application form itself in clause 8 it was mentioned that the candidates of reserved category should annex caste certificate on prescribed format. The petitioner submitted his application form showing his caste as OBC. In the counter-affidavit the respondents have not doubted the veracity of the claim of the petitioner that he belonged to the caste of ‘Kalar’. The only reason for rejecting his candidature , i.e., by disallowing him to participate in interview, is the certificate produced by him issued by an authority of State of M.P. showing that the caste of ‘Kalar’ was in the list of OBC in the State of M.P. and as per the Government notification of 23.3.1994, Annexure CA-4 to the counter-affidavit, ‘Kalar’ is not a caste included in the list of OBC in the State of U.P. Hence, the petitioner has been held not entitled for the benefit of concession and reservation applicable to OBC in the State of U.P. based on notification dated 23.3.1994. 9. Article 341 of the Constitution of India provides for determination and inclusion of caste, race or tribe etc. in the list of Scheduled Caste and reads as under : “341. Scheduled Castes.—(1) The President may with respect to any State or Union territory, and where it is State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 10. A perusal of Article 341 clearly shows that list of Scheduled Caste notified under sub-section (1) would result in making the castes, races or tribes notified to be the scheduled castes in relation to that State or Union territories as the case may be. A perusal of Article 341 clearly shows that list of Scheduled Caste notified under sub-section (1) would result in making the castes, races or tribes notified to be the scheduled castes in relation to that State or Union territories as the case may be. Article 342 is pari materia with Article 341 though it is in respect to Scheduled Tribes. No similar provision has been made with respect to OBC in the Constitution but for investigation of the conditions of backward classes appointment of a Commission is contemplated under Article 340 of the Constitution. Besides under the U.P. Public Services (Reservation for Scheduled Castes Scheduled Tribes and Other Backward Classes) Act 1994 (hereinafter referred to as “the Act of 1994), the term ‘OBC’ as per Section 2(b) means “such category of persons as are included in Schedule-I to the State List”. Section 13 of 1994 Act provides that the said list can be modified or amended by the Government by notification in the gazette. Learned Standing Counsel could not dispute that in exercise of power under Sections 13 of 1994 the State Government modified the list of OBC contained in 1994 Act vide notification dated 16.2.2003 and thereunder at item No. 73 the following castes are included in the list of OBC : “73-Kalal, Kalwar, Kalar” 11. It is thus evident from the above that the respondents have been acting under a mistake of fact and law both inasmuch as, they had been proceeding under the impression that for the purposes of ascertaining OBC, the effective notification under 1994 Act was that of 23.3.1994 but have ignored to consider that the said notification of 1994 was already amended in 2003 and on 16.2.2003 the list of OBC was extended and total number of categories included therein became 79 instead of 55 which were earlier included . The amended list included ‘Kalar’ caste as an OBC. The basic premise of the respondent that the caste is not included in the list of OBC under Section 2(b) of 1994 Act is, therefore, incorrect and contrary to record. It is clear that they were proceeding under a clear misconception that the caste of ‘Kalar’ is not OBC in the State of U.P. though it has been included by the notification dated 16.2.2003 and the said notification has admittedly not been taken into consideration by the respondents as is evident from their counter-affidavit. It is clear that they were proceeding under a clear misconception that the caste of ‘Kalar’ is not OBC in the State of U.P. though it has been included by the notification dated 16.2.2003 and the said notification has admittedly not been taken into consideration by the respondents as is evident from their counter-affidavit. This Court has no doubt in accepting the principle of law that if a person is included in the list of SC/ST or other backward class of another State, he may not claim benefit of concession or reservation on account of such inclusion of his castes in another State unless such caste is included in the list of respective reserved category in the State of U.P. for the purpose of claiming employment under the State Government of U.P. However, that by itself is not sufficient to non-suit the petitioner for the reason that his caste is included in the list of OBC in the State of U.P. also but the only flaw on his part is that he did not obtain caste certificate in the State of U.P. and submit to the authority concerned. For this reason alone, in my view, it would not be justified to deny the petitioner right to participate in interview for recruitment to the post of Assistant Operator in U.P. Radio Police Service pursuant to the selection in question. 12. In the result, the writ petition is disposed of with the following directions : (i) In case the petitioner obtains a caste certificate from the authority concerned of district Sonebhadra within a period of two months and submits it before the authority concerned within two weeks thereafter, the concerned authority shall make arrangement of interview of the petitioner also and in case he is ultimately selected, he shall be considered for appointment to the post in question according to his merit, position, etc. (ii) The exercise of consideration of the petitioner for interview etc. as directed above shall be completed within a period of six weeks after receiving a certificate from the petitioner as directed above. (iii) In case the petitioner fails to comply with the directions as contained in para 1 above, i.e. with respect to production of caste certificate before the authority concerned, this writ petition shall stand automatically dismissed. There shall be no order as to costs. ————