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Prashant Kumar v. State Of U.P Through Secretary (Personnel), U.P, Lucknow And Another
Factual and Procedural Background
This Full Bench reference arose from a Division Bench order dated 20.3.2002 in Writ Petition No. 20476 of 2001 (Prashant Kumar v. State of U.P. and Ors.). The Court formulated a specific question about the stage at which a candidate's caste must be entered in Schedule-I of the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 for entitlement to O.B.C. reservation.
Multiple petitioners (Prashant Kumar, Sujeet Kumar Jaiswal, Suraj Pal and others) and private respondents participated in the Combined State Subordinate Civil Service Examination, 2000, conducted by the U.P. Public Service Commission (advertisement published 7.1.2000; last date originally 28.1.2000, extended to 8.2.2000). Preliminary written exam: 28.5.2000; main written exams: 11.10.2000 & 17.10.2000; interviews: 21.4.2001; final result: 16.5.2001.
The petitions disputed whether candidates whose castes were notified as O.B.C. after the last date for submission of application forms (notably notifications dated 10.3.2000 for 'Jaat' and 7.7.2000 for 'kalwar') could be afforded the benefit of reservation. There were conflicting Division Bench decisions: in Pramod Kumar (26.3.2001) benefit was denied because candidates had appeared as general candidates, whereas in Km. Amrita Singh (7.5.2001) benefit was granted on the basis that the selection process was deemed to have been initiated when the written test began (28.5.2000).
The Division Bench referring the matter to a larger Bench ordered that one post of Sub-Divisional Magistrate be kept vacant in the interim. The Full Bench heard the parties, analyzed statutory provisions (notably Section 15 of U.P. Act No. 4 of 1994 and Section 6 of U.P. Act No. 21 of 2001), considered the advertisement terms and an array of precedents, and finally dismissed all petitions, discharged the interim orders and held that the O.B.C. benefit is applicable only to communities notified up to the last date of filling application forms (subject to any contrary provisions).
Legal Issues Presented
- "At what stage the caste of a candidate should be entered in the Schedule-I of the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 for him to get benefit as an O.B.C. candidate; should it be before the notification/advertisement of the selections, or the written test, or the oral test (in case of oral test only), or the declaration of the result?"
Arguments of the Parties
Arguments for Petitioners (represented by Sri Prakash Padia for Prashant Kumar)
- The advertisement was published on 7.1.2000 and the last date of filing (extended) was 8.2.2000; the notification including 'Jaat' as O.B.C. was issued on 10.3.2000, and therefore the petitioner should be treated as O.B.C. for the recruitment.
- Reliance on Section 15 of U.P. Act No. 4 of 1994 (savings clause) — submission that the recruitment period covered the vacancy period and the notification should apply; the petitioner also relied on Section 6 of the U.P. Act No. 21 of 2001 (special provision for pending recruitments) as amended and not altered in the subsequent amendment.
- Relied on authorities (including Km. Amrita Singh and Vice Chancellor University of Allahabad v. Dr. Anand Prakash Misra) to submit that legislature can make laws with retrospective effect and reservation can apply to existing vacancies when the Act came into force.
- Relied on Ashok Kumar Sharma v. Chandra Shekhar and Rule 37 of Public Services Commission Business Rules to argue that qualification/eligibility satisfied prior to a stage (e.g., interview) cannot later render a candidate ineligible.
- Prashant made a representation on 16.5.2001 (day result was published) asking to be treated as O.B.C.; he had secured 1,092 marks and sought placement according to O.B.C. merit.
Arguments for Km. Smrita Singh (represented by Sri D.K.S. Rathor)
- Claimed that post-selection benefit sought by Prashant Kumar after completion of selection is not legally sustainable; amendment to Schedule-I is not retrospective and cannot affect existing rights of candidates who were considered for selection.
- Relied upon Section 15 of U.P. Act No. 4 of 1994 and several precedents (A.V. Rangaiah, Shyam Sunder, A.A. Calton, P. Mahendra, etc.) to argue that the selection process is governed by rules existing at the relevant cut‑off and that vested substantive rights are not altered by later amendments.
- Noted that Smrita Singh had 1,096 marks and was higher than Prashant (1,092) for the sole O.B.C. vacancy in the Sub-Divisional Magistrate post, and thus even if another petition succeeded, she would have priority for appointment.
Arguments for U.P. Public Service Commission (represented by Sri M. A. Qadeer)
- Only those candidates recognized as O.B.C. on the last date for submission of application forms and who applied in that category are entitled to O.B.C. consideration; here the last date was 8.2.2000 and notifications came later (10.3.2000 and 7.7.2000), so petitioners cannot be allotted O.B.C. advantage.
- Contended that Section 15(1) has a one-time application and does not extend indefinitely to selections initiated after commencement of the Act.
- Relied on State of U.P. v. Vijay Kumar Misra and the advertisement terms which required category to be declared in the application and forbade change after receipt of application.
Arguments for the State (represented by Sri Sudhir Agarwal, Additional Advocate General)
- Advertisement clause 9.3(4) required that benefit of reservation would be applicable in accordance with existing Government orders and that candidates seeking reservation must declare such category in the application.
- There is nothing in U.P. Act No. 4 of 1994 to indicate that if Schedule is amended during a recruitment process, the amended schedule will apply; in absence of specific provision, the advertisement's directions govern.
- Relied upon a line of precedents (A. V. Rangaiah, A. A. Calton, P. Mahendra, P. Gyaneshwar Rao, N.T. Devin Kutti, P. Murugen, Ramesh Kumar Chaudhary and Sarika v. State of U.P.) to submit that advertised vacancies must be filled as per rules in force on the last date of application unless retrospective effect is expressly provided.
- Asserted that Section 15 of Act No. 4 of 1994 applies only to selections initiated before commencement of the Act, and Amrita Singh judgment was wrongly decided to the extent it relied only upon Section 15(1).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pramod Kumar and Anr. v. State of U.P. and Ors. (Division Bench, 26.3.2001) | Held petitioners had appeared as general candidates and their status could not be altered during the process of selections. | Cited as authority where benefit to 'Jaat' was denied because candidates had participated as general candidates; Court found this decision to be correct on outcome though not for identical reasons. |
| Km. Amrita Singh and Anr. v. State of U.P. and Ors. (7.5.2001) | Held process for selection deemed initiated when the written test was taken (relying on Section 15 of U.P. Act No. 4 of 1994); therefore petitioners were entitled to O.B.C. benefit. | The Court concluded that the Amrita Singh judgment was incorrectly decided insofar as it relied only upon Section 15(1) to grant benefit to 'Jaat' community notified on 10.3.2000. |
| Vice Chancellor, University of Allahabad and Ors. v. Dr. Anand Prakash Misra and Ors. | Used to show legislature is competent to make laws with retrospective effect and reservation Act can apply to existing vacancies when Act comes into force. | Referenced by petitioners; the Court considered these principles but held the particular savings/deeming clauses controlled applicability here. |
| Ashok Kumar Sharma and Anr. v. Chandra Shekhar and Anr. (1993 Supp (2) SCC 611) | Where appellant was qualified for being selected prior to date of interview, he could not be held ineligible; relevant to timing of qualification/eligibility. | Relied upon by petitioners to argue that being qualified prior to a stage (e.g., interview) should preserve eligibility; Court considered but ruled on advertisement cut‑off and statutory provisions. |
| Rule 37, Public Services Commission Business Rules | Permits provisional entertainment of applications where passing an exam may make candidate eligible for interview but bars viva if result unavailable or candidate declared failed on viva date. | Invoked by petitioners as procedural background for eligibility at stages; Court noted procedural rules but decided based on advertisement and statutory construction. |
| State of U.P. v. Vijay Kumar Misra | When eligibility qualifications are prescribed, an applicant not possessing prescribed qualification at time of application or cut-off date is not eligible to be considered. | Used by respondents to support that eligibility must be determined by the last date for receipt of applications; Court applied this principle to hold reservation applicability is fixed by the last date of application. |
| Suresh Chandra v. Gulam Chisti (1991 (1) ARC (SC) 415) | Illustrates that certain statutory benefits (Section 39 in that context) may be of one-time application and limited in scope. | Relied upon by respondents to support that Section 15(1) (and similar provisions) have one-time application; Court used this to interpret limits of Section 15 and Section 6. |
| A. A. Calton v. Director of Education | Part of authorities establishing that statutory rules are prospective unless expressly or necessarily retrospective; selections generally governed by rules existing when proceedings are initiated. | Included among authorities the Court relied upon for the well‑accepted principle that amendments are prospective unless expressly retrospective; helped form the Court's conclusion on cut‑off applicability. |
| A. V. Rangaiah v. J. Shreeniwasa Rao | Authority on non-retrospective operation of statutory rules and on applicability of rules to selection processes already initiated. | Cited by respondents and considered by Court in formulating the settled principles applied to this dispute. |
| P. Mahendra v. State (of Karnataka / Kerala as cited) | Reiterates that statutory rule or Government order is prospective unless expressly or by necessary implication retrospective; selections initiated by advertisement should be regulated by then existing rules. | The Court expressly quoted this authority (para 31–32) as articulating the core construction principle it applied to the present facts. |
| Mohan Kumar Lal v. Vinoba Bhave University and Ors. | Supreme Court held reservation introduced later could not be applied where appointments had already been made; illustrates limits on retroactive application of reservation. | Court cited the decision to support the view that later-introduced reservation cannot be applied to selections where the relevant cut-off or appointment timing prevents retrospective operation. |
| Shanker Kumar Mandal v. State of Bihar | Clarified principles about the cut-off date for prescribed qualifications: (1) cut-off date appointed by relevant service rules; (2) if none, date in advertisement; (3) if none, last date for receipt of applications. | The Court adopted these principles to determine that, absent a statutory cut‑off, the advertisement's last date for receipt of application governs reservation applicability. |
| Bhupenderpal Singh v. State of Punjab; Jasbir Rani v. State of Punjab | Support authorities cited in relation to determining the cut-off date for eligibility/qualification. | Referenced as part of the jurisprudence summarized and applied by the Court in identifying the applicable cut‑off for eligibility. |
| P. Gyaneshwar Rao v. State of Andhra Pradesh; N.T. Devin Kutti v. Kerala Public Service Commission; P. Murugen v. State of Tamil Nadu; Ramesh Kumar Chaudhary v. State of Madhya Pradesh; Sarika v. State of U.P. | Collectively relied upon to support the proposition that advertised vacancies should be filled according to rules in force on the last date of application unless rules are expressly retrospective. | These authorities were relied upon by respondents and considered by the Court in affirming that the advertisement and existing orders at the last date of application determine entitlement to reservation. |
Court's Reasoning and Analysis
The Court proceeded by addressing the statutory provisions, the terms of the examination advertisement, and the relevant precedents. Its reasoning unfolded in these principal steps:
- Examined the advertisement and application form requirements: the advertisement expressly stated that reservation would be provided "in accordance with the provisions of the then relevant Government orders" and required candidates seeking reservation to declare their category in the application form; it also forbade change in category after receipt of the application. The application form required submission of reserved-category certificates in respect of the category as applied for at the time of the preliminary examination.
- Identified the operative cut-off date for determining entitlement to reservation: because neither the service rules nor the U.P. Act No. 4 of 1994 prescribed a specific cut-off, the Court applied the settled principle from precedent (articulated in Shanker Kumar Mandal and related authorities) that the advertisement's last date for receipt of applications governs eligibility. The Court concluded that the prescribed date for applicability of reservation in this selection was the last date of filling up the application form — which the opinion records as "8.2.2003, which was the extended date" (as stated in the provided opinion).
- Interpreted Section 15 of U.P. Act No. 4 of 1994 and Section 6 of U.P. Act No. 21 of 2001: the Court held that Section 15's savings clause applies only to selection processes that were initiated before the commencement of the parent Act (22.3.1994) and that its Explanation is confined to subsection (1). Section 6 of Act No. 21 of 2001 (a special provision for pending recruitments) contains an express deeming clause and applies where no appointment had been made prior to the commencement of that amendment; it was not amended by the subsequent U.P. Act No. 1 of 2002. Thus, the Court treated Section 6 as a specific proviso for pending recruitments at the date of that Act's commencement and Section 15 as confined to selections initiated before 22.3.1994.
- Addressed the policy concern of ancillary benefits (e.g., age relaxation): the Court observed that applying a notification of inclusion in Schedule-1 after the last date of application would deprive potential applicants of benefits (such as age relaxation) they might have relied on when deciding whether to apply, causing discrimination.
- Considered the conflicting Division Bench authorities: the Court found that the Amrita Singh decision (which had allowed post-application notification benefit on the basis of Section 15(1)) was incorrectly decided insofar as it rested on that provision alone. The Pramod Kumar decision's outcome (denying the benefit) was upheld as correct in result, though the Full Bench noted the reasons differed.
- Applied the settled rule from precedent that a statutory rule or government order is prospective unless expressly or necessarily retrospective, and that selections initiated by advertisement will normally be regulated by the rules and orders in force at the relevant commencement/cut-off (here, the last date of application).
Holding and Implications
Holding:
DISMISSED. The Full Bench answered the referred question as follows (quoted in the opinion):
"The benefit of reservation to 'Other Backward Class' candidates in selection in Public Services by direct recruitment as provided by U. P. Public Service (Reservation for Scheduled Caste/Scheduled Tribes and Other Backward Class) Act, 1994, is applicable, to only those categories or castes which are notified as Other Backward Classes entered in Schedule-1 of the Act, upto the last date of filling up of the application form for such selections, provided there is no contrary provision in the Service Rules, the terms and conditions of recruitment, or in the advertisement."
Direct consequences and immediate effect:
- The Court held that candidates whose castes were notified as O.B.C. after the last date of filling application forms are not entitled to the benefit of O.B.C. reservation in those selections (absent specific contrary service‑rule or advertisement provision).
- Applying that rule to the facts, the Court found that Km. Smrita Singh (1,096 marks) had a higher merit than Prashant Kumar (1,092 marks) for the sole O.B.C. vacancy and was entitled to appointment.
- All writ petitions were dismissed; interim orders were discharged; there was no order as to costs.
Broader implications:
The Court articulated and applied a clear rule about timing: reservation entitlement for a selection by direct recruitment is governed by the status of Schedule-I entries up to the last date for filing applications (unless service rules, recruitment terms or the advertisement provide otherwise). The opinion reiterates the settled principle that statutory amendments are prospective unless expressly retrospective and that advertisement terms and declared cut-offs play a decisive role in determining eligibility.
1. On a reference dated 20.3.2002, made by the Division Bench in Writ Petition No. 20476 of 2001, Prashant Kumar v. State of U. P. and Ors., we have framed the following question to be decided in the matter :
"At what stage the caste of a candidate should be entered in the Schedule-I of the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 for him to get benefit as an O.B.C. candidate ; should it be before the notification/advertisement of the selections, or the written test, or the oral test (in case of oral test only), or the declaration of the result?"
2. All the petitioners and private respondents appeared in the Combined State Subordinate Civil Service Examination, 2000, held by U.P. Public Service Commission. The Advertisement No. A-1/E-1/2000 inviting applications for selections was published by the Commission on 7.1.2000. The last date of submission of the forms was 28.1.2000. It was extended to 8.2.2000. The preliminary written examination was taken on 28.5.2000. The main written examination was taken on 11.10.2000 and 17.10.2000. The interviews were held on 21.4.2001, and the final result was declared on 16.5.2001.
3. In Writ Petition No. 6250 (M/B) of 2000, Pramod Kumar and Anr. v. State of U.P. and Ors., the petitioners had claimed the benefit of the reservation as they belong to 'Jaat' community which was notified on 10.3.2000 as 'Other Backward Class' (In short O.B.C.) vide Notification amending the Schedule-I appended to the U.P. Public Services (Reservation for Scheduled Caste/Scheduled Tribes and Other Backward Class) Act, 1994 (in short U. P. Act No. 4 of 1994). A Division Bench by its judgment dated 26.3.2001, dismissed the petition on the ground that the petitioners had appeared as general candidates. The recruitment process had started, when the notification amending the Schedule-I was published. The petitioners had participated in the selection as general candidate. Their status could not be altered during the process of selections, and that the process cannot be bifurcated by the Court.
4. In Writ Petition No. 23193 of 2000, Km. Amrita Singh and Anr. v. State of U. P. and Ors., the same benefit of reservation as 'Jaat' as Other Backward Class vide Notification dated 10.3.2001, was claimed in the same examination. The Bench hearing the matter at Allahabad relied upon the provisions of Section 15 of U.P. Act No. 4 of 1994, and held that the process for selection shall be deemed to be initiated when the written test was taken. The preliminary written test was held on 28.5.2000, hence the petitioners were entitled to the benefit of reservation of 'Other Backward Class'. It was observed that if there are O.B.C. candidates, who are more meritorious than the petitioner, then obviously the petitioners can be appointed only if such more meritorious candidates are absorbed and there are still some vacancies left in the reserved category of O.B.C.
5. In the cases at hand the petitioner in Civil Misc. Writ Petition No. 20476 of 2001, Prashant Kumar v. State of U. P. and Ors., claims the benefit of the judgment in Km. Amrita Singh's case. The same Bench which had decided the Writ Petition No. 23193 of 2000, Km. Amrita Singh and Ors. v. State of U. P. and Ors. on 7.5.2001, found that the judgment in Pramod Kumar Singh's case by which the benefit of reservation to 'Jaat' community, was denied to the petitioners in the same selections, was not noticed by them, and that since there is a conflict between the two Division Benches, the matter should be decided by a larger Bench. By the referring order dated 20.3.2002, the Division Bench directed that in the meantime one post of Sub-Divisional Magistrate shall be kept vacant.
6. Before proceeding to deal with the question it would be appropriate to give in brief the facts of all the three writ petitions. In Writ Petition No. 20476 of 2001, the petitioner Prashant Kumar filled up his form for the Combined Civil Service Examination (Provincial), 2000 as a general candidate. He was declared successful in preliminary written examination, main written examination and was called for interview. He belongs to 'Jaat' community. By a notification dated 10.3.2000, issued under Section 13 of the U.P. Act No. 4 of 1994 the 'Jaat' community was included in Schedule-I in 'Other Backward Class' category vide entry No. 78. The petitioner made a request on 8.8.2000 at the time of filling his main examination form, to be treated in the Other Backward Classes category. He secured 1092 marks. He was not given the benefit of reservation, and treating him in general category, he was given placement as a Trade Tax Officer. He has prayed for a direction to be treated as Other Backward Class category candidate in the examination and to be placed as per the merit of Other Backward Class candidates. In the counter-affidavit of Sri Subhash Chandra, Officer on Special Duty, Department of U. P., Lucknow and Sri Radhey Lal, Section Officer, U. P. Public Service Commission the petitioner's claim has been denied. In paragraph 5 of the counter-affidavit of Sri Radhey Lal, it is stated that the last date of receipt of application form was 8.2.2000 and that since a notification including 'Jaat' community as 'O.B.C.' was published on 10.3.2000, the petitioner is not entitled to the benefit of reservation. He has relied upon the judgment in Pramod Kumar Singh's case decided on 26.3.2001. Km. Smrita Singh belonging to Other Backward Class category with 1,096 marks and placed at Sl. No. 6 in the merit list has sought impleadment in this writ petition. It is contended by her that there were five vacancies for the post of Sub-Divisional Magistrate in general category and one vacancy in O.B.C. category. She is the first in order of merit in O.B.C. category after five general category candidates and was sent for medical examination. The Writ Petition No. 1352 (S/B) of 2002 filed by her at Lucknow Bench of this Court, her entitlement to be sent for medical examination and training was accepted. She was, however, not sent for training because of the interim orders passed in the referring order. She claims that even if the writ petition filed by Sri Pramod Kumar succeeds, he cannot be given placement as Sub-Divisional Magistrate as, she has secured higher marks than him.
7. In Writ Petition No. 34731 of 2001, the petitioner Sri Sujeet Kumar Jaiswal had applied as a general category candidate. The 'kalwar' caste was included in Schedule-I of U.P. Act No. 4 of 1994 vide notification dated 7.7.2000 as Other Backward Class vide insertion of entry No. 79. A certificate that he belongs to kalwar community was issued by Tahsildar, Ghoshi on 11.8.2000. The preliminary examination was conducted on 28.5.2000. He was declared successful, in both the preliminary and main written examination and was called for interview. He was not treated as belonging to O.B.C. category and was not selected as the 'kalwar' caste was notified after the last date of submission of application forms for the examination. He has prayed for a direction to consider him in O.B.C. category candidate and to give him placement as such. In the counter-affidavit of Sri Radhey Lal, Section Officer, U.P. Public Service Commission, his claim is disputed, on the ground that the petitioner appeared as general category candidate. The last date of filling up the application form for the examination was 8.2.2000. The notification including 'kalwar' caste as Other Backward Class was published on 7.7.2002 and did not have retrospective effect.
8. In Writ Petition No. 15116 of 2002, the petitioner Suraj Pal had appeared in the examination as general category candidate. He also claims to be belonging to 'jaat' community which was notified as Other Backward Class category vide amendment of Schedule-I and addition of entry No. 78 by Notification dated 10.3.2000. He has also claimed the benefit of O.B.C. category candidate in the examination and consequent placement in the select list and has relied upon Km. Amrita Singh's case. No counter-affidavit has been filed by the respondents in this writ petition.
9. Sri Prakash Padia learned counsel for Sri Prashant Kumar in Writ Petition No. 20476 of 2001 submits that the advertisement was published on 7.1.2000. The notification including 'jaat' as O.B.C. in Schedule-I of the U.P. Act No. 4 of 1994 was issued on 10.3.2000. The petitioner made a request to the Commission on 8.8.2000 to treat him in the O.B.C. category. Similar benefit was given to one Sri Gyanendra Prakash in Writ Petition No. 4707 of 2000 decided on 7.5.2001. The result was published on 16.5.2001. On the same day the petitioner made a representation on 16.5.2001, to treat him as a candidate belonging to O.B.C. The petitioner was recommended for the post of Trade Tax Officer. By an order dated 20.3.2002 passed in this writ petition noticing the conflict between the Division Benches of this Court and referring the matter to Full Bench, an interim order was passed for keeping one post of Sub-Divisional Magistrate to be vacant.
10. Sri Padia submits that the U. P. Act No. 4 of 1994 defines the recruitment in paragraph 2 (d). It applies in relation to a vacancy for a period of twelve months commencing from the 1st day of July of the year when the process of direct recruitment against the vacancies is initiated. In the present case since the advertisement was issued on 7.1.2000 and the last date of filing the form was 8.2.2000, the notification including 'jaat' in O.B.C. category, dated 10.3.2000, is applicable to the recruitment. The benefit of this notification is to apply to the vacancies between 1.7.1999 upto 30.6.2000. He has also relied upon Section 15 of the U.P. Act No. 4 of 1994 which provides as follows :
"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.
(2) The provisions of this Act shall not apply to the appointment, to be made under the Uttar Pradesh Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974."
11. Sri Padia further submits that U.P. Act No. 4 of 1994 was amended by U. P. Public Services (Reservation for Scheduled Caste/Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2001 (U. P. Act No. 21 of 2001) Section 6 of this Amendment Act provides as follows :
"6. Special Provision for pending recruitments. -- The provisions of the principal Act as amended by this Act, shall also apply in respect of such recruitments to public services and posts as are pending on the date of the commencement of this Act.
Explanation. -- For the purposes of this section,--
(a) recruitment shall be deemed to be pending if in pursuance of that recruitment no appointment has been made before such commencement ;
(b) the expression "public services and posts" shall have the meaning assigned to it in the principal Act."
12. It is submitted that by yet another amendment vide U. P. Act No. 1 of 2002, the U.P. Act No. 4 of 1994 was again amended but the provisions of section 6 were left intact, and accordingly, the recruitment which was pending on the date of commencement of U. P. Act No. 21 of 2001, will apply to the recruitment. He has relied upon the judgments of this Court in Writ Petition No. 23193 of 2000 decided on 7.5.2001, Km. Amrita Singh and Ors. v. State of U. P. and Ors. and Vice Chancellor University of Allahabad and Ors. v. Dr. Anand Prakash Misra and Ors. (para 12) holding that Legislature is competent to make laws with retrospective effect. The Reservation Act applies to the existing vacancies on the date when the Act came into force. The process of selection was not started on that date. There is no vested right to any vacancy in a post. A person has a right only to be considered according to Rules in force as on the date of consideration. The process of selection, if it has started prior to that date, is required to be dealt with in accordance with the existing law. The selection process initiated after commencement of the Act has to be in conformity with the provisions of the Act. The vacancies which existed as on that date shall be required to be filled up, applying Sub-section (1) of Section 15 of the U.P. Act No. 4 of 1994.
13. Sri Padia has relied upon Ashok Kumar Sharma and Anr. v. Chandra Shekhar and Anr., 1993 Supp (2) SCC 611, in which the Supreme Court was faced with the question about the eligibility of the candidates for B.E. Examination. The result was declared on 21.8.1982, and the interviews were taken on 24.8.1982, and on the subsequent dates. It was held that where the appellant was qualified for being selected prior to the date of interview he could not be held ineligible. Reliance is placed upon Rule 37 of Public Services Commission Business Rules, which are quoted as below :
"37. Applications of candidates, who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared upto the date of making of the application, may be entertained provisionally, but no such candidate shall be permitted to take the interview, if he is declared as having failed in the examination, or if the results are not available on the date the viva voce test is held."
14. Sri D.K.S. Rathor, learned counsel for Km. Smrita Singh, impleaded as respondent No. 3, submits that the claim of Sri Prashant Kumar for benefit of reservation in O.B.C. category, after completion of selection process is not legally sustainable. The amendment to the Schedule 1 of the U.P. Act No. 4 of 1994, is not retrospective in nature. The amended rule cannot affect the existing rights of the candidates who have been considered for selection. It does not affect substantive and vested rights of the parties, unless the amendment is made retrospective expressly or by necessary implication. Section 15 of U.P. Act No. 4 of 1994 provides that the selection process shall be deemed to have been initiated where the written test or interview has started or both the written test and interviews have started.
15. Sri Rathor has relied upon the judgment in the A.V. Rangaiah v. J. Shreeniwasa Rao and Ors., ; Shyam Sunder and Ors. v. Ram Kumar and Ors.. (Constitution Bench), ; A.A. Calton v. Director of Education and Anr., ; P. Mahendra v. State of Kerala and Ors., , and submits that the petitioner Pramod Kumar had secured 1,092 marks. Km. Smrita Singh was placed at Sl. No. 6 immediately after general category candidates, and was first position in O.B.C. category with 1,096 marks, and thus even if the writ petition filed by Pramod Kumar succeeds, he cannot secure the only Other Backward Class Category vacancy of Sub Divisional Magistrate. The writ petition, according to Sri Rathor, is liable to be dismissed on this ground alone.
16. Sri M. A. Qadeer, learned counsel, appearing for U. P. Public Service Commission submits that only those candidates are entitled to be considered in O.B.C. category who were recognized as O.B.C. on the last date of submission of application form, and had applied in that category. In this examination the last date for receipt of application form was 8.2.2000. Since the petitioner's caste was notified to be included as O.B.C. on 10.3.2000 (Jaat) and 7.7.2000 (kalwar/kalar), and that the preliminary written examination was held on 28.5.2000, they cannot be given the benefit and place in the select list as O.B.C. candidates. Sri Qadeer submits that the provisions of Section 15 (1) of the Act, have one time application. These cannot be extended to the selection which was not pending on the date of commencement of U.P. Act No. 4 of 1994. He has relied upon the judgment of Supreme Court in Suresh Chandra v. Gulam Chisti, 1991 (1) ARC (SC) 415, in which while interpreting the provisions of Section 39 of U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, the Supreme Court held that the benefit of Sections 39, 40 and 2 (ii) of the Act, by which, the tenants in suits pending on that date of the commencement of the Act, in respect of the building to which the old Act did not apply could claim the protection of the Act by depositing the rent and other amounts within thirty days, were of one time application.
17. Sri Qadeer further submits that the eligibility or qualification of the candidates has to be reckoned on the last date of submission of application form. He has relied upon the judgment in State of U. P. v. Vijay Kumar Misra, . Sri Qadeer further submits that the advertisement clearly provided that
"reservation shall be provided in accordance with the provisions of the then relevant Government orders to Scheduled Caste/Scheduled Tribes/Other Backward Classes". Under the heading of 'Important Instructions' in the advertisement, it was also provided that no change in the category, optional subject or of Centre (District) is permissible after receipt of application form in the office of Commission.
18. Sri Sudhir Agarwal, learned Additional Advocate General, appearing for the State, has relied upon Section 9.3 (4) of the advertisement in which it was specifically provided that the benefit of reservation shall be applicable in accordance with the existing Government orders and if any candidate wants the benefit of reserved category, he must mention such category in the application form. He submits that there is nothing in U.P. Act No. 4 of 1994 to suggest that where the schedule is amended during the continuance of the process of direct recruitment, such amended schedule will apply to the selection. In the absence of any specific provisions in the Act, the directions in the advertisement have to be considered. The petitioner was not a candidate belonging to O.B.C. Category on the date of submission of application form and hence he cannot be allowed to take the advantage for recruitment in service on the basis of subsequent amendment to the Rules. Relying upon the judgment in A. V. Rangaiah (supra), A. A. Calton (supra), P. Mahendra (supra) and P. Gyaneshwar Rao and Anr. v. State of Andhra Pradesh, , N.T. Devin Kutti v. Kerala Public Service Commission, , P. Murugen v. State of Tamil Nadu, 1993 (2) JT 115 (para 7), Ramesh Kumar Chaudhary v. State of Madhya Pradesh, and a Full Bench of this Court in Writ Petition No. 55266 of 2003 ; Sarika v. State of U.P., decided on 24.2.2005, he submits that the advertised vacancies are required to be filled up as per rules existing on the last date of submission of application form, unless the Rules have been specifically given retrospective effect.
19. Sri Agarwal further submits that Section 15 of U. P. Act No. 4 of 1994 has no application whatsoever to any selections initiated after the commencement of the Act. The Explanation to Section 15 shows that the same is applicable only with respect to a situation given in Sub-section (1) of Section 15 and not to any selection in future and for all time to come. The judgment dated 7.5.2001 in Amrita Singh's case does not lay down correct law. He submits that the candidates who had applied for the selection are liable to be treated for the same category to which they belong as per their application form submitted till the last date of submission of such forms and any subsequent change will not entitle them to claim any benefit on the ground of change of category or status due to amendment in the relevant rules.
20. In A. C. Caltan v. Director of Education, ; A.V. Rangaiah v. J. Shreenivasa Rao, AIR 1983 SC 853 ; N.T. Bevin Kutti v. Kerala Public Service Commission, ; P. Gyaneshwar Rao v. State of Andhra Pradesh, 1988 Supp SCC 740 and P. Mahendran v. State of Karnataka, , the Supreme Court has reiterated the well accepted principles of applicability of statutory Rules to the selections as follows :
"It is a well accepted principle of construction that a statutory rule or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendra v. State of Karnataka,".
21. In State of U. P. v. Vijay Kumar Misra, , the Supreme Court held in paragraph 7 as follows :
"7. The position is fairly well-settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement is not eligible to be considered for such post."
22. In Mohan Kumar Lal v. Vinoba Bhave University and Ors., , the appointment to the posts was advertised on 10.1.1990, and the last date of submission of application was 30.1.1990. The High Court was of the view that since the appointments were not factually made, the reservation policy introduced on 22.8.1993 could not apply. The Supreme Court held that the High Court erred in applying the reservation as the provisions of section 57 which governed the fields did not contain any class for reservation and Sub-section (5) of Section 57 provide for reservation was introduced only on 22.8.1993.
23. In Shanker Kumar Mandal v. State of Bihar, , the Supreme Court was faced with the recruitment of 2000 Primary Teachers in Bihar. The High Court had not considered as to what were the applicable rules so far their eligibility was concerned. There was a concession made before the High Court that the appointees were over age on the date of initial appointment. There was no definite material as to what was the eligibility criteria so far as the age is concerned. The Supreme Court relying upon the judgment in Ashok Kumar Sharma v. Chander Shekhar, ; Bhupenderpal Singh v. State of Punjab, and Jasbir Rani v. State of Punjab, , culled out the principles of the applicability of the cut off date for the prescribed qualification relating to age by a candidate for appointment as follows :
"(1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for application.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
24. With these settled principles in hand, we find that in the present case the relevant service rules as well as U. P. Act 4 of 1994, do not provide for any cut off date for application of rules of reservation. In such cases the cut off date given in the advertisement becomes relevant. Here, the advertisement clearly stipulates in para 3 as well as 'Important Instructions' contained in the advertisement, that the reservation for Scheduled Caste/Scheduled Tribes/Other Backward Classes, Physically Handicapped, Dependents of Freedom Fighters, Ex-service-man and Woman Candidates shall be given as per existing Government orders for such reservation, and in Clause 9 (4), it was clearly stated that if a candidate belongs to reserved category, wants the benefit of such reservation, he should clearly state his category/sub-category (one for more than one as the case may be) in the reservation column. The 'Important Instruction' also clearly stated that no change in category, optional subject or of Centre (District) is permissible after receipt of application form in the office of Commission.
25. Clause (3) of the prescribed form in the main examination provided that the certificates in respect of the reserved category/sub-category for which the application was made at the time of preliminary examination should be submitted in accordance with the prescribed proforma in the advertisement A-1/E-1/2000 published on 1.1.2000 failing which the application form shall be rejected by the Commission. The advertisement, as such, clearly provided that the reservation shall be applicable in accordance with the existing Government orders. Since the category for reservation had to be mentioned in the application form, and para 3 of the advertisement mentioned 'existing Government orders', the existing reservations were applicable upto the last date of filling up of application forms. We thus find that the prescribed date for applicability of reservation in the subject selection was the last date of filling up the application form, i.e., 8.2.2003, which was the extended date.
26. The reservation to any category under U. P. Act No. 4 of 1994 also provides some additional benefits namely relaxation in age. If the benefit of notification including any community in Schedule 1 of the Act, is to be given after the date of filling up of application forms, all those persons who could have applied taking the benefit of the relaxation in age, will be deprived of this benefit. In case the submission made by the petitioners are to be accepted and the reservation is made applicable to the candidates of those community who are included in Schedule 1 of the Act after the last date of filling up of the application form, the persons who could also apply will be discriminated.
27. This brings up to the applicability of Section 15 of U. P. Act No. 4 of 1994 and Section 6 of the U. P. Act No. 21 of 2001 amended U. P. Act No. 4 of 1994. The savings clause in Section 15 is applicable to selection process which was initiated before the commencement of the Act. The Explanation to Section 15 cannot stand on its own. It explains the expression, 'initiated before the commencement of this Act', and Sub-section (1) of Section 15. It has no application to the pending Selections which may be initiated after the commencement of the Act. The U. P. Act No. 4 of 1994 came into force on 22.3.1994, when it received the assent of the Governor. The object and the purpose of the saving clause in Section 15 was to apply the provisions of reservation to selection process which were initiated before the commencement of the Act, and such cases were to be dealt with in accordance with the provisions of the Act and Government orders as they stood before such commencement. It only means that the reservations were to be applied to pending selections for direct recruitment on 22.3.1994. Similarly Section 6 of the U. P. Act No. 21 of 2001 makes the provisions of the Principal Act as amended by the Act No. 21 of 2001 to apply to such recruitment to Public Service and posts and were pending on the date of commencement of the Act. The Explanation in this case is not the same as in Section 15 (1) of the parent Act and provides for a deeming clause for the pendency of the recruitment namely that the recruitment shall be deemed to be pending if in pursuance of that recruitment no appointment has been made before such commencement (commencement of the U. P. Act No. 21 of 2001, October 5, 2001). Section 6 of the U. P. Act No. 21 of 2001 as such is a special provision for pending recruitment, and by deeming clause it makes the amended provisions of the Act applicable, where no appointment have been made before commencement of the amended Act. This Section 6 was not amended by the U. P Act No. 1 of 2002, which subsequently amended U. P. Act No. 4 of 1994.
28. Section 39 of U. P. Urban Buildings (Regulation of Letting Rent and Eviction Act), 1972, provided for the applicability of the Act to such cases in respect of which suit of eviction was pending on the date of commencement of the Act. It gave protection from eviction, if the tenant deposited the entire amount of, rent and damages for use and occupation together with interest at 9% and full cost of suit within one month from the date of such commencement, and in that case no decree for eviction could be passed except on the ground other than the ground mentioned in proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) of Section 20 of the Act. The Supreme Court held that the provisions of section 39 will be applicable only where the suit is pending on the commencement of the Act and will not apply to those suits which are filed after such commencement. Ordinarily the rule of construction is that the same expression when it appears more than once in the same statute more-so, the same provision, must receive the same meaning unless the context suggests otherwise. The use of prefix 'before the commencement' will become redundant if the benefit is to be extended beyond one month or till the date the suits are filed, subsequent to that date. We are thus of the opinion that the provisions of Section 15 of U. P. Act No. 4 of 1994 were applicable only to those selections for direct recruitment which were initiated before the commencement of the Act No. 4 of 1994. We are further fortified in this view by the use of words 'this Act' in Section 15 (1) after the words 'commencement of, and thereafter again the use of the words as 'provision of law and Government orders as they stood before such commencement". Further we find that the Explanation is confined only to the Sub-section (1) of Section 15 of the Act.
29. We thus find that the judgment in Km. Amrita Singh relying only upon the provisions of Section 15 (1) of U. P. Act No. 4 of 1994, for giving benefits of the reservations to 'jaat' community, which was declared as O.B.C. and added to the Schedule-1 of the Act by notification dated 10.3.2000, was incorrectly decided, and that the judgment in Pramod Kumar Singh's case is correct but not on the reasons given in the judgment. For the same reasons the benefit of inclusion of the 'kalwar/kalar' caste in the Schedule-1 as Other Backward Class by notification dated 7.7.2000 also will not give benefit to such candidates as this notification was also published, after the last date of filling up of the application form for the selections.
30. We consequently answer the question as follows :
"The benefit of reservation to 'Other Backward Class' candidates in selection in Public Services by direct recruitment as provided by U. P. Public Service (Reservation for Scheduled Caste/Scheduled Tribes and Other Backward Class) Act, 1994, is applicable, to only those categories or castes which are notified as Other Backward Classes entered in Schedule-1 of the Act, upto the last date of filling up of the application form for such selections, provided there is no contrary provision in the Service Rules, the terms and conditions of recruitment, or in the advertisement."
31. It is admitted to the parties that the merit position of Km. Smrita Singh with 1,096 marks was higher than the merit position of Prashant Kumar with 1,092 marks for the only vacancy on the post of Sub-Divisional Magistrate reserved for 'O.B.C.' in the selections and as such Km. Smrita Singh is entitled for appointment.
32. We consequently, dismiss all the petitions, with no order as to costs. The interim orders are discharged.
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