U.P.Public Service
Commission Vs. Satya Narayan Sheohare & Ors. [2009] INSC 430 (26 February
2009)
Judgment
Reportable IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2627 OF
2006 U.P. PUBLIC SERVICE COMMISION ....... APPELLANT (s) WITH CIVIL APPEAL NO.
2632 OF 2006
O R D E R
V. Raveendran J.
The appellant Uttar
Pradesh Public Service Commission, (`Commission' for short) issued an
advertisement dated 4.3.2000 inviting applications for filling 147 posts of
Civil Judge (Jr. Division) under the U.P. Nyayik Sewa Niyamavali 1951. The
provisions relating to essential qualifications in the said advertisement
contained the following note:- 2 "Candidate must possess all
qualifications prescribed in the advertisement by last date for acceptance of
Application form. Any candidate coming under the reservations category, if they
want the benefit of reservation must indicate their category in the relevant
column in the prescribed format and should obtain the certificate issued by the
Competent Authority in the prescribed format printed in the advertisement and
annex an attested copy of it along with Application form."
1.
The
respective first respondent in each of these two appeals made applications
claiming to be general category candidates. The written examination was held on
4th, 5th and 6th August 2000 and the two candidates participated in the said
examination as general category candidates.
2.
In
the meanwhile, by notification dated 7.7.2000, the state government added the
castes of `kalal', `kalwar' and `kalar', in the list of other backward classes
by amending the First Schedule to the U.P. Public Services (Reservation for
Schedule Castes, Schedule Tribes and Other Backward Classes) Act 1994 (`Act'
for short). The first respondent in C.A. No.2627 of 2006 belongs to caste
`kalar' and the first respondent in C.A. No. 2632 of 2006 belongs to the caste
`kalal'. They obtained caste certificates dated 2.8.2000 and 24.8.2000. They
made representations dated 29.8.2000 and 13.9.2000 respectively to the
Commission to accept their caste certificates and extend them the benefit of
reservation as candidates belonging to other backward classes. The same was not
accepted. As they had applied for the post as general category candidates,
their applications were considered as general category candidates. They were
not selected. Feeling aggrieved, they filed writ petitions before the High
Court of Allahabad contending that they ought to have been treated as OBC
candidates and if they had been so treated then they would have been selected
as they were more meritorious than the last selected candidate in the OBC
category. The High Court, by orders dated 27.2.2003 and 19.12.2003, allowed
their petitions following its earlier decision in Km. Amrita Singh & Ors.
v. State of U.P.& Anr. (Civil Misc. Writ Petition No. 28193/2000 decided on
7.5.2001) and directed them to be treated as OBC candidates. The said judgments
are challenged in these appeals by special leave.
3.
The
High Court held that the status of the writ petitioners as on the date when the
selection process was deemed to have been initiated, was the relevant factor to
decide whether they were entitled to claim the benefit of reservation, in view
of the special provision contained in Section 15 of the Act, extracted below :
"15. Savings -
(1) The provisions of this Act shall not apply to cases in which selection
process has been initiated before the commencement of this Act and such cases
shall be dealt with in accordance with the provisions of law and government
orders as they stood before such commencement.
Explanation - For the
purposes of this sub- section the selection process shall be deemed to have
been initiated where, under the relevant service rules, recruitment is to be
made on the basis of - (i) written test or interview only, the written test or
the interview, as the case may be, has started, or (ii) both written test and
interview, the written test has started.
xxxxx The High Court
held that as the process of selection was deemed to have been initiated when
the written test was started and as the Schedule I to the Act was amended prior
to the commencement of written test, the writ petitioners should be treated as
OBC candidates.
4.
The
appellant contends that section 15 of the Act, which is a savings clause, being
a transitional provision, was intended to apply only to pending selection processes
when the Act came into force on 1.12.1993 and therefore, recourse to such
transition provision was impermissible in regard to recruitments notifications
issued on or after 1.12.1993. It was submitted that the condition in the
advertisement (extracted in para above) made it clear that only candidates who
claimed the benefit of reservation in their application and enclose the
certificate issued by the 5 competent authority certifying their reservation
category status would be considered under the reservation category.
It was pointed out
that even if a person belonged to a reservation category, if he did not choose
to claim the benefit of reservation in his application and applies as a general
category candidate, he cannot subsequently claim the benefit of reservation by
producing the certificate relating to caste status. It is therefore contended
that the two candidates were not entitled to claim the benefit of reservation.
5.
Section
15 is no doubt intended to apply as a transition provision. Section 15 makes it
clear that if selection process had been initiated before the commencement of
the Act, that is before 1.12.1993, such selection process had to be dealt with
in accordance with the provisions of law and government orders as they stood
before such commencement date and not by the provisions of the Act. For this
purpose, according to the explanation to the section, the selection process
shall be deemed to have been initiated when the written test started (where the
recruitment was on the basis of written test and interview). On account of this
special deeming provision, reservation provision in the Act became applicable
even in regard to recruitment notifications issued prior to the 6 commencement
of the Act, provided the written test had not commenced as on the date of
commencement of the Act. Section 2(b) of the Act defines `other backward
classes of citizens' as those backward classes of citizens specified in
Schedule I to the Act. Where a particular caste was not included in the list of
`other backward classes' in Schedule I to the Act, when the Act was enacted,
and when such caste is subsequently added to the list of other backward classes
in Schedule I of the Act by way of an amendment, for all purposes, the Act
commences in respect of the newly added caste, from the date when the Amendment
Act came into effect. Thus, the principle contained in Section 15 would apply
whenever a new caste, which was not an OBC earlier, is added to Schedule I of
the Act by an amendment to the Act. Therefore whenever the Act is amended by
including new castes/classes in the list of other backward classes in Schedule
I, the date of amendment to the Act would be the date of commencement of the
Act in regard to such caste/class inserted by the amendment.
6.
It
is evident from the explanation to sub-section (1) of Section 15 that where
under the relevant service rules recruitment is to be made on the basis of
written test and interview, the selection process shall be deemed to have been
initiated on the date on which written test was 7 started. In this case, there
is no dispute that the written test started on 4.8.2000. It is also not in
dispute that before 4.8.2000 when the written test commenced, the state
government had issued a notification amending the First Schedule to the Act
including the castes to which the writ petitioners belonged, in the list of
OBCs. Therefore, though the writ petitioners were general category candidates
when the recruitment notification dated 4.3.2000 was issued, as on the relevant
date, namely the date on which the selection process was deemed to have been
initiated, they were OBC candidates. Having regard to the fact that the
notification including their castes in the Schedule was issued on 7.7.2000
after the recruitment notification, they were not able to show their caste as
an OBC nor could they claim the benefit of reservation as OBC candidates when
they made applications. However when the Act was amended on 7.7.2000 before the
commencement of the written test, they became entitled to claim the benefit of
reservation, and they secured the necessary certificates and gave their
representations without any delay on 29.8.2000 and 13.9.2000 respectively.
Having regard to the principle underlying Section 15 of the Act, we are of the
view that the decision of the High Court directing that that the writ
petitioners should be treated as OBC candidates does not call for any
interference.
7.
It
should be noted that the selections and appointments in regard to the 2000
advertisement were completed long back and thereafter appointments have been
made even in respect of subsequent selections in 2003 and 2006. But it should
also be noted that there was no delay on the part of the two candidates, as
they had approached the Commission, and thereafter the High Court, without any
delay. There was a bona fide doubt as to whether the writ petitioners should be
treated as OBC candidates or general category candidates having regard to the
fact that they had applied as general category candidates. Therefore, when the
Commission treats the writ petitioners as OBC candidates and selects them on
account of their marks/rank being more than the last selected candidate in the
OBC category, their appointment should not affect or disturb the appointments
already made in respect of the 2000 selections or the subsequent selections.
The appointment of writ petitioners, if found entitled for selection and
appointment with reference to their rank, will be prospective in nature. The
Commission is granted four months' time for compliance.
8.
Appeals
are disposed of accordingly.
.....................J
[R. V. Raveendran]
.................
...J [H. L. Dattu]
New
Delhi.
February
26, 2009.
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