U.P.Public Service Commission vs Satya Narayan Sheohare & Ors

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2627 OF 2006

U.P. PUBLIC SERVICE COMMISION ....... APPELLANT (s)

Vs.

SATYA NARAYAN SHEOHARE & ORS. ....... RESPONDENT (s)

WITH

CIVIL APPEAL NO. 2632 OF 2006

O R D E R

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."

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 3

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 4

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. 8

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 9

[R. V. Raveendran]

.................

...J [H. L. Dattu]

New Delhi.

February 26, 2009.