# Kumar v. State of U.P. and others, we

- **Citation:** (2006) 2 ILRA 710
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-07-19
- **Case number:** Civil Misc. Writ Petition No. 20476 of 2001
- **Bench:** Yatindra Singh, Sunil Ambwani, D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-v-state-of-u-p-and-others-we-40909
- **Pages:** 12

## Headnote

Sri D.K.S. Rathor
Sri M.A. Qadeer
Sri Kamlesh Shukla
Sri B.N. Singh
Sri S.P. Kesharwani
Sri D.P. Singh
Sri Pushpendra Singh
Sri Sudhir Agarwal, A.G.A.
S.C.

U.P. Public Service (Reservation for
Scheduled Caste, Scheduled Tribes and
Other Backward Classes) Act 1994existed
as
on
22.3.94.
Section-15,
readwith
Public
Service
Commission
Business
Rules-Rule
37-
Backward
Caste-Combined State Subordinate Civil
Services
Examination
advertisement
published on 7.1.2000-Last date for
submission of forms fixed 28.1.2000petitioner
belonging
to
'Jaat
Community'-Notified
similarly
calwar
caste included in Schedule-I of Act No. 4
of
1994
on
7.7.2000-Kalwar
Caste
included in Scheduled I of U.P. Act No. 4
of
1994
25.5.2000
preliminary
examination
conducted-whether
the
benefit of reservation of O.B.C. can be
given? Held-'No'-the benefit may be
given to those who were interned in
schedule I of the Act upto the last date
of the submission of application form.

Held: Para 30

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-I 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.
Case law discussed:
1993 Supp. (2) SCC-611
1983 (3) SCC-284
1983 (3) SCC-33
AIR 1990 SC-405
1997 (1) AWC-415
J.T. 2001 (10) SC-5230
AIR 1988 SC-2068
AIR 1990 SC-1233
1993 (2) J.T. 15
1996 (11) SCC-242
W.P. No. 55266 of 03 decided on 24.2.05
AIR 1998 Supp. SCC-740
JT 2001 (10) SC-520
2002 (10) 704
2003 (9) SCC-519
1997 (4) SCC-18
2000 (5) SCC-262

## Text

710 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2007

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 20476 of 2001

Prashant Kumar

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri V.K. Shukla
Sri Prakash Padia
Sri R.P. Singh
Sri B.R. Mishra

Counsel for the Respondents:
Sri D.K.S. Rathor
Sri M.A. Qadeer
Sri Kamlesh Shukla
Sri B.N. Singh
Sri S.P. Kesharwani
Sri D.P. Singh
Sri Pushpendra Singh
Sri Sudhir Agarwal, A.G.A.
S.C.

U.P. Public Service (Reservation for
Scheduled Caste, Scheduled Tribes and
Other Backward Classes) Act 1994existed
as
on
22.3.94.
Section-15,
readwith
Public
Service
Commission
Business
Rules-Rule
37-
Backward
Caste-Combined State Subordinate Civil
Services
Examination
advertisement
published on 7.1.2000-Last date for
submission of forms fixed 28.1.2000petitioner
belonging
to
'Jaat
Community'-Notified
similarly
calwar
caste included in Schedule-I of Act No. 4
of
1994
on
7.7.2000-Kalwar
Caste
included in Scheduled I of U.P. Act No. 4
of
1994
25.5.2000
preliminary
examination
conducted-whether
the
benefit of reservation of O.B.C. can be
given? Held-'No'-the benefit may be
given to those who were interned in
schedule I of the Act upto the last date
of the submission of application form.

Held: Para 30

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-I 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.
Case law discussed:
1993 Supp. (2) SCC-611
1983 (3) SCC-284
1983 (3) SCC-33
AIR 1990 SC-405
1997 (1) AWC-415
J.T. 2001 (10) SC-5230
AIR 1988 SC-2068
AIR 1990 SC-1233
1993 (2) J.T. 15
1996 (11) SCC-242
W.P. No. 55266 of 03 decided on 24.2.05
AIR 1998 Supp. SCC-740
JT 2001 (10) SC-520
2002 (10) 704
2003 (9) SCC-519
1997 (4) SCC-18
2000 (5) SCC-262

(Delivered by Hon'ble Sunil Ambwani, J.)

1. On a reference dated 20.3.2002
made by the Division Bench in writ
petition No. 20476 of 2001, Prashant
Kumar Vs. State of U.P. and others, we
have framed the following questions to be
decided in the matter:-
2 All] Prashant Kumar V. State of U.P. and another
711
"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 OBC 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 another
Vs. State of U.P. and others, 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 OBC) vide Notification amending
the Schedule I appended to the U.P.
Public Service (Reservation for Scheduled
Caste/Scheduled
Tribes
&
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 another
Vs. State of U.P. and others, 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 OBC 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
OBC.

5. In the cases at hand the petitioner
in Civil Misc. Writ Petition No. 20476 of
2001, Prashanat Kumar Vs. State of U.P.
and others, 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 others Vs. State of U.P.
and others 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
712 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 the 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 proceedings 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 Class 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
candidate's. 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
petitioners 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 'OBC' 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
1096 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 OBC
category. She is the first in order of merit
in OBC category after five general
category candidates and was sent for
medical Attend 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 34731 of 2001, the
petitioner Sri Sujeet Kumar Jaiswal had
applied as a general category candidate.
The 'Kalwar' caste was included in
Schedule Attend -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
2 All] Prashant Kumar V. State of U.P. and another
713
successful, in both the preliminary and
main written examination and was called
for interview. He was not treated as
belonging to OBC 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 OBC 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 OBC 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 OBC
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 OBC category. Similar benefit was
given to one Sri Gyanendra Prakash in
writ petition No. 4707 of 2008 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
OBC. 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 filling the form was
8.2.2000, the notification including ''Jaat'
in OBC 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
714 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 Service (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) 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
in
tact,
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 Km. Amrita
Singh and others Vs. State of U.P. and
others in writ petition No. 23193 of 2000
decided on 7.5.2001, and Vice Chancellor
University of Allahabad and others Vs.
Dr. Anand Prakash Misra and others (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
another
Vs.
Chandra Shekhar and another, 1993
Supp (2) SCC 611, in which the Supreme
Court was faced with the question about
2 All] Prashant Kumar V. State of U.P. and another
715
the illegibility 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 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 up to 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. Smita Singh, impleaded
as respondent no. 3, submits that the
claim of Sri Prashant Kumar for benefit of
reservation
in
OBC
category,
after
completion of selection process is not
legally sustainable. The amendment to the
Schedule I of the U.P. Act No. 4 of 1996,
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 effect
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. Rangaith Vs.
Shreeniwasa Rao and other, 1983(3)
SCC 284 (para 8 & 9); Shyam Sunder
and others Vs. Ram Kumar and others,
(Constitution Bench) 2001(8) SCC 24
(para 28); A.A. Calton Vs. Director of
Education and another, 1983(3) SCC 33
(para 5); P. Mahendra Vs. State of
Kerala and others AIR 1990 SC 405
(paras 5,6,7 & 10), and submits that the
petitioner Pramod Kumar had secured
1092 marks. Km. Smita Singh was placed
at Sl. No. 6 immediately after general
category candidates, and was first position
in OBC category with 1096 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
OBC category who were recognized as
OBC 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 OBC 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 OBC
candidates. Sri Qadeer submits that the
716 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 Vs.
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 section 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. Vs. Vijay Kumar Misra, JT
2001 (10) SC 5230. 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 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 OBC Category on the date of
submission of application form and hence
he can not 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 another Vs. State
of Andhra Pradesh, AIR 1988 SC 2068
(para 8,9 & 10), N.T. Devin Kutti Vs.
Kerala Public Service Commission,
AIR 1990 SC 1233 (para 11). P.
Murugen Vs. State of Tamil Nadu,
1993(2) JT 115 (para 7) Ramesh
Kumar
Chaudhary
Vs.
State
of
Madhya Pradesh 1996 (11) SCC 242
(para 7) and a Full Bench of this Court
in writ petition No. 55266 of 2003:
Sarika Vs. 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.
2 All] Prashant Kumar V. State of U.P. and another
717
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 selections 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 Vs. Director of
Education,1983 (3) S.C.C. 33; A.V.
Rangaiah Vs. J. Shreenivasa Rao, AIR
SC
853;
N.T.
Bevin
Kutti
Vs.
Karnataka Public Service Commission,
S.C. 1233; P. Gyaneshwar Rao Vs.
State of Andhra Pradesh 1998 Supp
SCC 740 and P. Mahendran Vs. State
of Karnakataka AIR 1990 SC 405, 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 rules 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 Vs. State of
Karnataka (1989) 4 JT 459; (AIR 1990
SC 405)."

21. In State of U.P. Vs. Vijay
Kumar Misra, JT 2001 (10) SC 520, 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 Vs.
Vinoba Bhave University and others
(2002) 10 scc 704, 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 field did not contain any
718 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 Vs.
State of Bihar (2003) 9 SCC 519, the
Supreme Court was faced with the
recruitment of 2000 Primary Teachers in
Bihar. The High Court had not considered
as to what wre 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 Vs. Chander Shekhar, (1997) 4
SCC 18; Bhupenderpal Singh Vs. State
of Punjab, (2000) 5 SCC 262 and Jasbir
Rani Vs. State of Punjab, (2002) 1 SCC
124, 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
No. 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, Independents 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
2 All] Prashant Kumar V. State of U.P. and another
719
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 I 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 reservations is
made applicable to the candidates of those
community who are included in ScheduleI 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 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 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
Building 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
720 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
occupation together with interest as 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 clause (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 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 OBC and added to
the Schedule-I 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-I
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-I 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 1096 marks was higher than the
merit position of Prashant Kumar with
1092 marks for the only vacancy on the
post
of
Sub
Divisional
Magistrate
reserved for 'OBC' in the selections and as
such Km Smrita Singh is entitled for
appointment.
2 All] Ram Nagina Das Chela V. D.D.C., Deoria and another
721
32. We consequently, dismiss all the
petitions, with no order as to costs. The
interim orders are discharged.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.21638 of 2006

Ram Nagina Das Chela
...Petitioner
Versus
Dy.
Director
of
Consolidation
and
another

 ...Opposite parties

Counsel for the Petitioner:
Sri O.P. Pandey

Counsel for the Opposite Parties:
Sri Chandra Prakash Mishra
S.C.

U.P. Consolidation Holding Act Section-3
(II)-Power of Consolidation authoritiesconfined to decide the right title, interest
in Land of tenure holder-admittedly Sri
Shanti
Hanuman
Ji
(Deity)
found
recorded
as
Bhumidhar-with
consolidation court has no concerns with
the right of Sarverakarship-which can be
adjudicated by only the Civil CourtPetition dismissed.

Held: Para 8

Admittedly,
Sri
Shanti
Hanuman
Ji
(Deity) is Bhumidhar of the land in
dispute. Bhumidhar is recorded through
Sarvakar-Haridas. Actually petitioner is
not disputing rights of Bhumidhar. He is
disputing rights of Sarvakarship, which
can be decided by Civil Court, and cannot
be
decided
by
the
Consolidation
authorities and as such Consolidation
authorities rightly did not decide the
question whether Sri Shanti Hanuman Ji,
who is Deity, is liable to be represented
through Haridas or through Ram Nagina
Das-petitioner.
Case law discussed:
1971 R.D.-19 relied on

(Delivered by Hon'ble S.N. Srivastava, J.)

1. This writ petition is directed
against the order dated 18th January, 2006,
passed
by
Deputy
Director
of
Consolidation, Deoria, Annexure-10 to
the writ petition.

2. In the Basic year Sri Shanti
Hanuman Ji (Deity) through Sarvakar
Haridas was recorded as tenure-holder. It
transpires from the record that in C.H.
Form-23 some entries were made on the
basis of an order allegedly passed in
conciliation proceedings by Assistant
Consolidation Officer. It further appears
from the record that Haridas who was
Sarvakar of the tenure-holder (Deity)
moved an application that this is a forge
entry as no order was passed by Assistant
Consolidation Officer in conciliation
proceeding
and
the same may be
expunged. The matter came up before this
Court in Writ Petition 32133 of 1999
wherein this Court while remanding the
matter directed that petitioners are entitled
to get opportunity on the question whether
entry is forge or not. On remand, the
matter was enquired into and it was found
that entry made in consolidation record on
the basis of alleged order passed by
Assistant
Consolidation
Officer
in
conciliation
proceeding
was
forged.
Present petition is preferred against
aforesaid order passed by the Deputy
Director of Consolidation.

3. Heard learned counsel for
petitioner as well as learned Standing
Counsel.