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:-

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“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

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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

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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

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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

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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

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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.

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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

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[R. V. Raveendran]

................. ...J

[H. L. Dattu]

New Delhi. February 26, 2009.

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