# Public Service Commission, U.P. Prayagraj v. JWO Satish Chandra Shukla (Retd.) & Ors

- **Citation:** (2022) 11 ILRA 1036
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-18
- **Case number:** Special Appeal Defective No. 323 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/public-service-commission-u-p-prayagraj-v-jwo-satish-chandra-shukla-retd-ors-47944
- **Pages:** 12

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226, - U. P. Public Services
Reservation for Physically Handicapped,
Dependants of Freedom Fighters and Exservicemen Act, 1993 - Sections 3, 3(1),
3(1)(i-a), 3(2), 5, 5(1) & 5(1-A) - Appeals
- 8888888888888 arising out of allowed the writ
petitions - in which petitioners are commonly
challenged the Election of office bearers,
approval of the list of working committee &
renewal of registration certificate of the Society
- no argument were addressed to concealment
of material facts as pointed out by writ court -
SU.P.ressio veri, expression faisi - Appellants are
not deserve to any relief from this Court, as
11 All. Public Service Commission, U.P. Prayagraj Vs. JWO Satish Chandra Shukla (Retd.) &
 Ors.
1037
they are not only guilty of concealment of
material facts from Court but, also are indulged
in forum shopping as well as polluting the
stream of justice.(Para - 60, 63, 69)

Appeals are dismissed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,961 of 40,967. This is a partial read: ask again with offset=39961 for what follows._

1036 INDIAN LAW REPORTS ALLAHABAD SERIES
the
mainstream
health
care.
NHRM
introduced the concept of mainstreaming of
AYUSH and revitalization of local health
traditions. This concept helped in utilizing
the
untapped
AYUSH
workforce,
therapeutics
and
the
principle
of
management
of
community
health
problems at different levels. The envisaged
objective, inter alia, was to provide choice
of the treatment system to the patients and
strengthen implementation of national
health programs.

42. The State Government is justified
in not accepting the Dynamic ACP
formulated by the Central Government for
its Medical Officers, instead formulated the
SACP scheme falling within the realm of
administrative policy. But the question is
whether such a policy upon being provided
can discriminate amongst different streams
of medicine practiced by Medical Officers.
Admittedly,
the
Medical
Officers,
irrespective of the stream of medicine
(Allopathy or conventional) treat the
patients which is the core underlying
similarity. The comparison with regard to
qualification, course of study/syllabus,
nature of duty, responsibility etc. as is
being pressed by the State Government to
carve out a class of Medical Officers i.e.
PHMS being superior to other Medical
Officers is misconceived and unfounded
insofar it relates to conferment of SACP.
The administrative policy is invariably
discriminatory in keeping the Medical
Officers (Ayurvedic) and other streams out
of the scheme having regard to the concept
of ACP as discussed earlier.

43. Accordingly, the writ petition is
allowed.

44. The impugned order dated
29.03.2019,
passed
by
the
Principal
Secretary, Medical and Health Department,
Government of U.P., Lucknow, is hereby
quashed. It is provided that the Special
ACP Scheme (SACP) implemented vide
Government Order dated 14 November
2014, shall be applicable to the Medical
Officers of other streams also.
----------
(2022) 11 ILRA 1036
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal Defective No. 323 of 2022

Public Service Commission, U.P. Prayagraj
 ...Appellant
Versus
JWO Satish Chandra Shukla (Retd.) & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Rakesh Pandey, Senior Advocate Sri
Nipun Singh, Sri G.K. Singh, Sr. Advocate

Counsel for the Respondents:
Sri Ajay Mishra, Advocate General, Sri K.R.
Singh, Chief Standing Counsel, Sri A.B.N.
Tripathi, Sri T. Islam

Civil Law - Constitution of India, 1950 -
Article 226, - U. P. Public Services
Reservation for Physically Handicapped,
Dependants of Freedom Fighters and Exservicemen Act, 1993 - Sections 3, 3(1),
3(1)(i-a), 3(2), 5, 5(1) & 5(1-A) - Appeals
- 8888888888888 arising out of allowed the writ
petitions - in which petitioners are commonly
challenged the Election of office bearers,
approval of the list of working committee &
renewal of registration certificate of the Society
- no argument were addressed to concealment
of material facts as pointed out by writ court -
SU.P.ressio veri, expression faisi - Appellants are
not deserve to any relief from this Court, as
11 All. Public Service Commission, U.P. Prayagraj Vs. JWO Satish Chandra Shukla (Retd.) &
 Ors.
1037
they are not only guilty of concealment of
material facts from Court but, also are indulged
in forum shopping as well as polluting the
stream of justice.(Para - 60, 63, 69)

Appeals are dismissed. (E-11)

List of Cases cited: -

1. Prashant Kumar Vs St. of U.P. & ors., 2005 (4)
E.S.C. 2395 (All)

2. Shankar K. Mandal & ors.Vs St. of Bihar &
ors., (2003) 9 SCC 519

3. Ashok Kumar Sharma Vs Chander Shekhar,
(1997) 4 SCC 18 : 1997 SCC (L&S) 913

4. BhU.P.inderpal Singh Vs St. of Punjab, (2000)
5 SCC 262 : 2000 SCC (L&S) 639

5. Jasbir Rani Vs St. of Pun., (2002) 1 SCC 124
: 2002 SCC (L&S) 107

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. This Special Appeal by the Uttar
Pradesh Public Service Commission is
directed against a judgment and order dated
August 2, 2022, allowing Writ - A No.
18091 of 2021.

2. The writ-petitioners, who are
respondent nos. 1 to 4 to this Appeal, are all
Ex-Servicemen, who have retired or been
discharged from different positions in the
Armed Forces of the Union, such as the
Army or the Navy.

3. The grievance of the writpetitioners is that they are entitled to be
considered under The Uttar Pradesh Public
Services
(Reservation
for
Physically
Handicapped, Dependents of Freedom
Fighters and Ex-Servicemen) (Amendment)
Act, 2021 (for short, '2021 Act'), entitling
them to a 5% reservation in the ongoing
selection/ recruitment, held pursuant to
Advertisement No. A-1/E-1/2021 dated
February 5, 2021 to the "Combined State/
Upper
Subordinate
Services
(PCS)
Examination,
2021
and
Assistant
Conservator of Forest (A.C.F.)/ Range
Forest
Officer
(R.F.O.)
Services
Examination - 2021" (for short, 'the PCS
Examination, 2021').

4. The learned Single Judge has set
out in copious detail the facts of the case,
including the rival stands of the writpetitioner-respondents (for short, 'the writ
petitioners') and the Uttar Pradesh Public
Service
Commission
(for
short,
'the
Commission'),
which
need
not
be
recapitulated here, except the essentials on
which the event in the cause turns.

5. Prior to the enactment of The Uttar
Pradesh Public Services (Reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993 (U.P. Act No. 4 of 1993) (for short,
'the 1993 Act'), reservation for ExServicemen in different services of the
State was governed by circulars and
government orders issued by the State
Government under the directions and
control of the Government of India. In the
days prior to enforcement of the 1993 Act,
reservation for Ex-Servicemen existed in
all categories of posts under the State,
including Group A, B, C and D. Upon
enactment and enforcement of the 1993
Act, however, there was codification of the
State's
Policy
regarding
horizontal
reservation
inter
alia
for
the
ExServicemen. A total of 5% of vacancies at
the stage of direct recruitment in favour of
the Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen were
reserved under Section 3(1) of the 1993 Act
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
by virtue of Section 3(2). The inter se quota
of each category was entrusted to be fixed
by the State Government from time to time
by notified order. The 1993 Act came into
force on December 11, 1993. The 1993 Act,
however, suffered an amendment vide U.P.
Act No. 6 of 1997 (for short, 'the First
Amendment Act'), enforced w.e.f. July 31,
1997. The First Amendment Act brought
about the change that the inter se
percentage of reservation to the three
categories of horizontal reservation, that
was left to the State Government to
determine by notified order, was specified
by the 1993 Act itself substituting the
existing sub-Section (1) of Section 3. The
First Amendment Act provided that in posts
to be filled up by direct recruitment, 2% of
vacancies shall be reserved for dependents
of Freedom Fighters and 1% for ExServicemen.

6. A second amendment to the 1993
Act was made by U.P. Act No. 29 of 1999
and enhanced the percentage of reservation
for the Ex-Servicemen within the 5%
horizontal reservation quota from 1% to
2%. However, by clause (i-a) of subSection
(1) brought
in
through
the
amendment to the existing Section 3 of the
1993 Act, it was provided in the following
terms:

"3. In section 3 of the principal
Act, in sub-section (1) for clause (i) the
following clauses shall be substituted,
namely-

"(i) in public services and posts
two per cent of vacancies for dependents of
freedom fighters:

(i-a) in public services and posts
other than group ''A' posts or group 'B'
posts on and from May 21, 1999 two per
cent of vacancies, and on and from the date
on which the Uttar Pradesh Public Services
(Reservation for Physically Handicapped,
Dependents of Freedom Fighters and ExServicemen) (Amendment) Act, 1999 is
published in the Gazette five per cent of
vacancies, for Ex-servicemen;"

7. Section 5 of the 1993 Act was also
amended by U.P. Act No. 29 of 1999 (for
short, 'the Second Amendment Act'),
providing in the following terms:

"4. In section 5 of the principal
Act, for sub-section (1), the following subsections shall be substituted, namely:

"(1) The Provisions of this Act as
amended by the Uttar Pradesh Public
Services
(Reservation
for
Physically
Handicapped, Dependents of Freedom
Fighters and Ex-Servicemen) (Amendment)
Act, 1997 shall not apply to cases in which
selection process has been initiated before
the commencement of the said Act of 1997
and such cases shall be dealt with in
accordance with the provisions of this Act
as they stood before such commencement.

(1-A) The Provisions of this Act
as amended by the Uttar Pradesh Public
Services
(Reservation
for
Physically
Handicapped, Dependents of Freedom
Fighters and Ex-servicemen) (Amendment)
Act, 1999 shall not apply to cases in which
selection process has been initiated before
the commencement of the said Act of 1999
and such cases shall be dealt with in
accordance with the provisions of this Act
as they stood before such commencement.

Explanation-For the purposes of
sub-sections (1) and (1-A) 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
11 All. Public Service Commission, U.P. Prayagraj Vs. JWO Satish Chandra Shukla (Retd.) &
 Ors.
1039

(ii)
both
written
test
and
interview, the written test has started."

8. It must be remarked that for
extension of the benefit of reservation of
the lesser 1% reduced by the First
Amendment Act, there was an identical
provision to amend Section 5 of the 1993
Act. A look at the provisions of the Second
Amendment Act would show that while it
enhanced the percentage of reservation for
Ex-Servicemen in the Public Services and
posts in connection with affairs of the State,
where vacancies were to be filled by direct
recruitment, from 1% to 5%, but excluded
the
applicability
of
this
horizontal
reservation insofar as Group A and B posts
were concerned. Earlier it was applicable
for posts of all categories. The other feature
of seminal importance to both the First and
the Second Amendment Acts is how the
relative amendments would affect the
ongoing recruitment at the relevant time.
Both the First and the Second Amendment
Acts said in unequivocal terms that the
relative Amending Act shall not apply to
cases, where the selection process was
initiated before commencement of the
Amendment Act concerned. It was also
made explicit that all cases, where the
selection process had been initiated before
commencement of the Amendment Act
concerned, such cases shall be dealt with in
accordance with the provisions of the 1993
Act, as these stood immediately before the
enforcement of the relevant Amendment
Act. The appended explanation to the
amended provisions introduced through
both the First and the Second Amendment
Acts to the existing provisions of Section 5
of the 1993 Act carried an explanation, also
identical in terms in both the amendments.
The explanation appended to the amended
provisions of Section 5 stipulates when the
selection process shall be deemed to have
been initiated and provides in the terms that
the amended provisions of Section 5
extracted hereinabove show. In case of a
recruitment made on the basis of a written
test or interview alone, the written test or
the interview, as the case may be, once
started, would be regarded as initiation of
the selection process. In cases where both
written test and interview are envisaged
under the Service Rules, the selection
process would be regarded as initiated
when the written test has started.

9. Now, by a further amendment to
the 1993 Act made through U.P. Act No. 14
of 2021, which has been published in the
Official Gazette on March 10, 2021, the
existing clause (i-a) of sub-Section (1) of
Section 3 has been amended to provide as
follows:

"2. In section 3 of the Uttar
Pradesh Public Services (Reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993 in sub-section (1) for the existing
clause (i-a), the following clause shall be
substituted, namely:-

(i-a) in public
services and posts other than Group 'A'
posts, on and from the date on which the
Uttar Pradesh Public Services (Reservation
for Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen)
(Amendment) Act, 2021 is published in the
Gazette, five, percent of vacancies for exservicemen."

U.P. Act No. 14 of 2021, for the sake
of convenience, shall hereinafter be called
as 'the Third Amendment Act'.

10. It may also be mentioned here in
the passing that the Amendment Acts were
preceded by ordinances to the said effect
about which there is no issue in the writ
petition, giving rise to this Appeal.
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
Advertisement
No. A-1/E-1/2021
was
issued by the Commission on February 5,
2021, inviting applications for recruitment
to posts through the PCS Examination,
2021. The last date for submission of online
form was March 5, 2021. By the
notification bearing No. 48/01/ई-1/2020-21
dated March 10, 2021, it was provided as
under:

"उ0प्र0 ि क सेिा आय ग, प्रयागराि
द्वारा सस्म्मवित राज्य / प्रिर अधीनथि सेिा
परीक्षा, 2021 तिा सहायक िन संरक्षक / क्षेत्रीय
िन अवधकारी सेिा परीक्षा, 2021 से संबंवधत
विज्ञापन संख्या- ए-1 / ई -1/2021 विनांक
05.02.2021 क िारी वकया गया िा विसके
संबंध में अभ्यविणय ं से आनिाइन आिेिन पत्र
वनधाणररत अस्न्तम वतवि विनांक 05.03.2021 तक
प्राप्त वकये िा चुके ह ।

उक्त विज्ञापन से संबंवधत कवतपय
अभ्यविणय ं के फ ट ि हस्ताक्षर त्रुवट पूर्ण पाये
गये है, विनकी सूचना आय ग की िेबसाइट
http://uppsc.up.nic.in पर उपिब्ध है। अतैंः
उक्त विज्ञापन के अभ्यविणय ं क विनांक
10.03.2021 से 17.03.2021 तक सही फ ट ि
हस्ताक्षर पुनैंः अपि ड करने का अस्न्तम अिसर
प्रिान करते हुए उनसे अपेक्षा की िाती है वक िे
वनयत वतवि तक फ ट ि हस्ताक्षर आय ग की
उक्त िेबसाइट पर अपि ड कर िें। वनयत वतवि
के उपरान्त इस हेतु क ई अिसर नहीं प्रिान
वकया िाएगा तिा इस सम्बन्ध में वकसी
प्रत्यािेिन पर विचार वकया िाना सम्भि नहीं
ह गा।"

 (emphasis by Court)

11. The writ petitioners, who applied
for
recruitment
through
the
PCS
Examination, 2021, with the last date for
submission of the application form being
March 5, 2021, claimed that they are
entitled to the benefit of reservation for ExServicemen regarding Group B posts, that
has
been
introduced
by
the
Third
Amendment Act. The Commission have
denied the benefit of horizontal reservation
to the writ petitioners in the category of ExServicemen based on the Third Amendment
Act on ground that the third amendment is
expressly made effective from the date of
publication of the Third Amendment Act in
the Official Gazette on March 10, 2021,
whereas the last date for submission of the
online application form was March 5, 2021.
The Commission, therefore, took a stand
that the writ petitioners cannot be extended
the benefit of the Third Amendment Act.

12. It is the writ petitioners' case that
they were informed by the Commission on
August 27, 2021 through a reply sent by
their Public Information Officer that the
Government
Order
with
regard
to
reservation for the Ex-Servicemen was
issued on March 16, 2021, after the last
date for submission of online application
forms for the PCS Examination, 2021 i.e.
March 5, 2021. As such, the amended
provisions would not enure to the writ
petitioners' benefits. It appears that on
October 24, 2021, the writ petitioners
appeared in the preliminary examination
and
the
results
of
the
preliminary
examination were declared on December 1,
2021. The writ petitioners failed to qualify.
Accordingly, the writ petitioners instituted
the present writ petition some times in
December, 2021, seeking extension of the
benefit of the Third Amendment Act. It is,
therefore, the writ petitioners' case that if
they were extended the benefit under the
Third
Amendment
Act,
the
PCS
Examination, 2021 being one for a Group
B posts, the writ petitioners, who were ExServicemen, would qualify the preliminary
examinations in the reservation category
and get a chance to appear in the main
11 All. Public Service Commission, U.P. Prayagraj Vs. JWO Satish Chandra Shukla (Retd.) &
 Ors.
1041
written test. It is on this cause of action that
the writ petitioners have instituted the writ
petition asking for the issue of a mandamus
to the Commission to implement the
necessary follow-up action, in terms of the
provisions of the Third Amendment Act to
the ongoing selection process for the PCS
Examination, 2021, insofar as it relates to
the writ petitioners.

13. The Commission contested the
aforesaid claim put forward by the writ
petitioners and urged for a principle that the
Third Amendment Act being prospective,
would not apply to a case, where the last date of
submission of the online application form had
already gone by, when the Third Amendment
Act
was
introduced.
The
Commission,
therefore, contended before the learned Single
Judge that the benefit of the Third Amendment
Act cannot be extended to the writ petitioners.
The learned Judge, however, has allowed the
writ petition, quashed the decision of the
Commission to deny benefit of the Third
Amendment Act to the writ petitioners and
issued a mandamus to re-determine the
preliminary examination results, giving benefit
of reservation to Ex-Servicemen on Group B
and C posts. The learned Judge has further
ordered that after publication of the preliminary
examination results within one month, admit
cards be issued for the main written
examination based on the results of the
preliminaries, and further, the results of the
main examination be declared giving 5%
reservation on Group B posts to ExServicemen. Call letters for interview have been
directed to be issued accordingly.

14. Aggrieved, the Commission have
preferred this Appeal under Chapter VIII
Rule 5 of the Rules of Court, 1952.

15. Heard Mr. Rakesh Pande, learned
Senior Advocate assisted by Mr. Nipun
Singh, learned Counsel on behalf of the
Commission, Mr. Ajay Mishra, learned
Advocate General assisted by Mr. K.R.
Singh, learned Chief Standing Counsel
appearing on behalf of the State of U.P. and
Mr. A.B.N. Tripathi and Mr. T. Islam,
learned Advocates for the writ petitioners.

16. It is submitted by the learned
Senior
Advocate
appearing
for
the
Commission that the learned Single Judge
has failed to take into account the fact that
the last date of submission of online
application form was March 5, 2021 and
the Third Amendment Act came to be
published in the Official Gazette on March
10, 2021. As such, the provisions of
reservation with regard to Group B posts
for Ex-Servicemen, introduced through the
Third Amendment Act, cannot enure to the
writ petitioners' benefit. It is further pointed
out that the writ petitioners were informed
by the Commission on August 27, 2021,
prior to the preliminary examination that
the Third Amendment Act would not enure
for their benefit, but they chose to sit the
examination without challenging the action
of the Commission at that stage, and once
they have failed to clear the preliminary
examination held on October 24, 2021, the
results whereof were declared on December
1, 2021, they have brought the writ
petition, giving rise to this Appeal. It is
contended that the writ petitioners are
estopped from challenging the result of the
selections,
once
they
have
sat
the
preliminary
examinations
after
due
communication of the fact that the benefit
of the Third Amendment Act would not be
available to them.

17. It is argued that the learned Single
Judge has failed to appreciate that the
amendments to Section 5 of the 1993 Act,
introducing amended sub-Sections (1) and (1-
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
A) by the First and the Second Amendments
to the existing Section 5 of the 1993 Act is
different from that introduced by the Third
Amendment Act, inasmuch as it does not
carry any explanation of the kind found in
sub-Sections (1) and (1-A), introduced
through the First and the Second Amendment
Acts. In the absence of the decisive
explanation in the Third Amendment Act, the
applicability of the 1993 Act would depend
on
the
last
date
mentioned
in
the
advertisement for receipt of the application
forms online. Here, the last date of
application forms online was March 5, 2021,
whereas the Third Amendment Act was
published in the Official Gazette on March
10, 2021. It is also said in criticism of the
learned Single Judge's judgment that the
learned Single Judge has misconstrued the
notification dated March 10, 2021 as an
extension of date for submission of the online
application forms, whereas it was an
extension of date for certain corrections to
forms, already uploaded, on or before the last
date fixed for receipt of the online forms. It is
also urged that the learned Judge has failed to
take into consideration the fact that the entire
selection process has almost concluded and
August 5, 2022 is the last date for interview,
whereafter
results
would
be
declared.
Interference with the selection process at this
stage is not warranted. It is emphasized that
the writ petitioners are four in number,
whereas other similarly circumstanced do not
object. To allow the writ petition at this stage
would throw the entire selection process out
of gear.

18. The learned Advocate General has
supported the submissions advanced by the
learned Senior Counsel appearing for the
Commission.

19. On the other hand, the learned
Counsel for the writ petitioners have
supported the impugned order and the
reasoning of the learned Single Judge.

20. Upon hearing the learned Counsel
for parties, we are unable to agree on any
of the counts that the learned Single Judge
has found for the writ petitioners.

21. The remarks of the learned Single
Judge that the last date for submission of
online application forms as the determining
criteria for eligibility bear reference to
eligibility as such, say with reference to the
essential qualifications etc., but has no
bearing for the purpose of applying
reservation in an ongoing recruitment
appear
to
be
based
on
unaccepted
reasoning.
The
learned
Judge
has
distinguished the decision of the Full
Bench of this Court in Prashant Kumar v.
State of U.P. and others, 2005 (4) E.S.C.
2395 (All) on ground that the case dealt
with eligibility for persons, who were not
notified as O.B.C. until the last date for
filling up of the online application forms,
but thereafter. It has been remarked by the
learned Judge that here the writ petitioners
are Ex-Servicemen and at the time of
submission of the application forms, they
have claimed that category for the purpose
of age relaxation. It has also been remarked
by the learned Judge that the last date for
submission of the application forms had
been extended by the Commission through
a Press Release dated March 10, 2021 from
the said date to March 17, 2021 and that
Group B posts were included by way of the
Third Amendment Act, notified on March
15, 2021. In fact, the Third Amendment Act
was notified by publication in the Official
Gazette on March 10, 2021. It has been
observed that the Third Amendment Act
made the benefit applicable on and from
the date of publication in the Official
Gazette. It did not require any separate
11 All. Public Service Commission, U.P. Prayagraj Vs. JWO Satish Chandra Shukla (Retd.) &
 Ors.
1043
Government Order to make it applicable. It
has then been observed by the learned
Judge that the legislature had consciously
avoided introducing any sub-clause to
Section 5 of the 1993 Act, saving the
ongoing selections as it had done on earlier
occasions when the Second and Third
Amendment Acts were notified. According
to the learned Judge, the intention of the
legislature was clear and it was the
obduracy on the Commission's part in
declining
to
extend
the
benefit
of
reservation in Group B posts to the writ
petitioners under the Third Amendment
Act.

22. So far as these findings of the
learned Judge are concerned, we are not in
agreement with them except for the
remarks that the Third Amendment Act did
not require a separate Government Order to
be issued to make it applicable. In fact, no
Government Order appears to have been
issued to enforce the Act. The mention of
the Government Order has figured in some
communication by the Commission on
account of a poor forensic understanding of
their functionaries, but nothing here turns
upon it.

23. The Third Amendment Act is clear
in its intendment and that it is applicable
from the date when it was notified in the
Official Gazette. It is clearly prospective in
nature; not retrospective by any principle of
construction. It is a well settled principle of
statutory construction that any substantive
law, particularly one creating, curtailing,
enlarging an existing right or providing for
a new one, is deemed to be prospective,
unless expressed to be retrospective.
Reverse principle may apply in case of
procedural
laws.
Here,
the
Third
Amendment Act introduces a new right and
that is provision of reservation to ExServicemen on posts under the State in
Group
B.
Earlier
by
the
Second
Amendment Act, reservation for ExServicemen though increased in numerical
percentage, had withdrawn it vis-a-vis
Group B posts. Thus, the Third Amendment
Act brought in a new right i.e. reservation
in Group B posts under the State for ExServicemen. A statute of this kind, creating
a new right, can hardly be regarded as
retrospective.
Moreover,
the
Third
Amendment Act expressly says vide clause
(i-a), introduced by Section 2 of that
Amendment Act,
that
it
would
be
applicable
from
the
date
that
the
Amendment Act is published in the
Gazette, granting 5% reservation to ExServicemen. It is also not in dispute that the
Third Amendment Act was published in the
Official Gazette on March 10, 2021.

24. The general principles about the
prospective operation of laws, including
amendments
that
introduce
or
affect
substantive rights, have been the subject
matter of elucidation in Principles of
Statutory
Interpretation,
Thirteenth
Edition by Justice G.P. Singh, where on the
basis of judicial authority, the learned
Commentator has exposited:

"2.
RETROSPECTIVE OPERATION

(a) General principles

"(i) x x x x

(ii)
Statutes
dealing
with
substantive rights.- It is a cardinal principle
of construction that every statute is prima
facie prospective unless it is expressly or
by necessary implication made to have
retrospective operation. But the rule in
general is applicable where the object of
the statute is to affect vested rights or to
impose new burdens or to impair existing
obligations. Unless there are words in the
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
statute sufficient to show the intention of
the Legislature to affect existing rights, it is
"deemed to be prospective only ''nova
constitutio futuris formam imponere debet
non prae teritis' [2 c. Int. 392]" In the
words
of
LORD
BLANESBURG,
"provisions which touch a right in existence
at the passing of the statute are not to be
applied retrospectively in the absence of
express enactment or necessary intendment.
"Every statute, it has been said", observed
LOPES, L.J., "which takes away or impairs
vested rights acquired under existing laws,
or creates a new obligation or imposes a
new duty, or attaches a new disability in
respect of transactions already past, must
be presumed to be intended not to have a
retrospective effect". As a logical corollary
of the general rule, that retrospective
operation is not taken to be intended unless
that intention is manifested by express
words or necessary implication, there is a
subordinate rule to the effect that a statute
or a section in it is not to be construed so as
to have larger retrospective operation than
its language renders necessary. .......

"....... An amending Act is,
therefore, not retrospective merely be cause
it applies also to those to whom preamended Act was applicable if the
amended Act has operation from the date of
its amendment and not from an anterior
date. But this does not mean that a statute
which takes away or impairs any vested
right acquired under existing laws or which
creates a new obligation or imposes a new
burden in respect of past trans actions will
not be treated as retrospective. Thus to
apply an amending Act, which creates a
new
obligation
to
pay
additional
compensation, or which reduces the rate of
compensation, to pending proceedings for
de
termination
of
compensation
for
acquisitions already made, will be to
construe it retrospective which cannot be
done unless such a construction follows
from
express
words
or
necessary
implication.
Similarly,
a
new
law
enhancing compensation payable in respect
of an accident arising out of use of motor
vehicle will not be applicable to accidents
taking place before its enforcement and
pending proceedings for assessment of
compensation will not be affected by such a
law unless by express words or necessary
implication the new law is retrospective. It
makes no difference in application of these
principles that the amendment is by
substitution or otherwise..."

25. One principal limb of the
reasoning that the learned Judge has
adopted to apply the Third Amendment Act
to the ongoing selection is the conscious
omission of a clause similar to sub-Sections
(1) and (1-A) of Section 5, with the
appended explanation as finds place in the
First and the Second Amendment Acts.
Those clauses, amending Section 5 of the
1993 Act, introduced through the First and
the Second Amendment Acts, indicating
that the relative amendments would not be
applicable to the ongoing selection process
and then explaining what ongoing process
means, has in fact made those amendments
applicable to ongoing selections that had
not reached the stage of the written test or
the interview, or the written test alone, as
the case may be, as per the contingencies
there.
In
more
specific
terms,
the
amendments to the changed horizontal
reservation in Public Services, including
those for Ex-Servicemen by the First and
the Second Amendment Acts, would apply
to a selection process, where the last date of
receipt of application forms had gone by,
but in a case where the selection was to be
made through written test or interview, the
written test or interview, as the case may
be, had not commenced. The omission of a
11 All. Public Service Commission, U.P. Prayagraj Vs. JWO Satish Chandra Shukla (Retd.) &
 Ors.
1045
similar clause in the Third Amendment is
not to be understood the way the learned
Single Judge has done. The learned Single
Judge has interpreted the omission virtually
to mean that the Third Amendment would
apply to cases in which the process of
selection had already been initiated, the
absence of a clause similar to sub-Sections
(1) and (1-A) of Section 5 of the 1993 Act,
relative to the Third Amendment Act,
makes
the
Third
Amendment
Act
prospective on its own terms.

26. The learned Single Judge has held
that in the 1993 Act, by the First and the
Second Amendments, the legislature has
introduced a fiction, which explains when
the selection process would start. In the
opinion of the learned Judge, the fiction
introduced by sub-Sections (1) and (1-A) to
Section 5 of the 1993 Act, by the First and
the Second Amendment Acts, would also
apply to the substituted clause (i-a) of subSection (1) of Section 3 of the 1993 Act,
brought in by means of the Third
Amendment Act. This Court has noticed
above that there is no corresponding
amendment to Section 5 vis-a-vis clause (ia) of sub-Section (1) of Section 3, as
substituted by the Third Amendment Act, in
the
manner
that
the
provision
was
introduced by amending sub-Sections (1)
and (1-A) of Section 5 of the 1993 Act,
through
the
First
and
the
Second
Amendment Acts. Therefore, the fiction
about what selection process would mean
for the purpose of clause (i-a) of subSection (1) of Section 3, substituted by the
Third Amendment Act, is not at all
relevant. The learned Single Judge has
clearly erred in applying the provisions of
sub-Sections (1) and (1-A) of Section 5 of
the First and the Second Amendment Acts
or the Second Amendment Act alone to the
amendment brought in by the Third
Amendment Act, which does not carry a
corresponding clause creating a fiction
about what commencement of the selection
process would mean.

27. Now, the question arises, what
would be the date or the point of time or
the event, when the amendment would
become applicable on a prospective basis.

28. The learned Single Judge has
taken note of the decision of the Supreme
Court in Shankar K. Mandal and others
v. State of Bihar and others, (2003) 9
SCC 519, where it has been held:

"5. .......... What happens when a
cut-off date is fixed for fulfilling the
prescribed qualification relating to age by a
candidate for appointment and the effect of
any non-prescription has been considered
by this Court in several cases. The
principles culled out from the decisions of
this Court (see Ashok Kumar Sharma v.
Chander Shekhar [(1997) 4 SCC 18 : 1997
SCC (L&S) 913] , Bhupinderpal Singh v.
State of Punjab [(2000) 5 SCC 262 : 2000
SCC (L&S) 639] and Jasbir Rani v. State of
Punjab [(2002) 1 SCC 124 : 2002 SCC
(L&S) 107] ) are 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 applications.

(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."
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

29. There are remarks by the learned
Single Judge, particularly in Paragraph No.
22 of the impugned judgment that show
that the principles in Shankar K. Mandal
(supra) had not been held applicable
because the learned Judge has thought that
the principles in Shankar K. Mandal are
referable to eligibility of a candidate with
reference
to
his/
her
educational
qualifications etc. These principles do not
apply to the case of reservation.

30. The decision of the Full Bench in
Prashant
Kumar
(supra)
had
the
following question for consideration before
their Lordships:

"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?"

31. It was answered in the following
terms:

"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.""

32. The decision of the Full Bench
also pegs down the date of eligibility to the
last date for the filing of the application
form. The decisions that indicate the last
date of submission of application forms to
be the date by which the eligibility
qualification
for
declaration
of
a
reservation category must come into
existence, would also apply on principle to
the present case. Here, what is sought in
substance is a reservation category, may be
horizontal, that was not available to the
writ petitioners until the last date of
submission of their application forms. It
became
available
under
the
Third
Amendment Act w.e.f. the date it was
published in the Official Gazette i.e. March
10, 2021. The last date for submission of
the application forms was clearly March 5,
2021. On principle, therefore, the eligibility
under the Third Amendment Act has to be
judged with reference to the last date for
submission of the application forms for the
PCS Examination, 2021.

33. The learned Single Judge has also
held that the last date of submission of the
application forms must be deemed to be
extended until March 17, 2021, because a
perusal of the Press Release dated March
10, 2021 shows that the Portal of the
Commission remained open for making
modification/ corrections to application
forms submitted by candidates. It has been
opined that if the Commission was careful
enough, it could have extended the benefit
of reservation in Group B posts to the writ
petitioners
in
terms
of
the
Third
Amendment Act, that was published in the
gazette on March 10, 2021, inasmuch as the
11 All. Smt. Kusum Gupta Vs. Prescribed Authority/Civil Judge (Sr. Div.), Distt. Shahjahanpur &
 Ors.
1047
amendment was made applicable on and
from the date of its publication in the
Official Gazette. We do not agree. A
perusal of the Press Note dated March 10,
2021 indicates that the Commission have
clearly mentioned therein that it has
received application forms from candidates
for the PCS Examination, 2021 in response
to the advertisement dated February 5,
2021 by the last date fixed i.e. March 5,
2021. It is then said that in some cases,
mistakes about the photographs or in the
signatures of the candidates made, have
been found, the information regarding
which
has
been
posted
on
the
Commission's website. The Notification/
Press Note then goes on to say that the
candidates
who
have
uploaded
their
application forms carrying defects relating
to their photographs or signatures, would
have last opportunity between March 10,
2021 and March 17, 2021, to upload their
correct
photographs
and
signatures.
Thereafter, there would be no further
opportunity.

34. The said Notification/ Press Note
dated March 10, 2021, in our opinion, has
been patently misconstrued by the learned
Single Judge to be an extension of the last
date for receipt of the application forms for
the PCS Examination, 2021. It is no more
than extension of a limited facility to those
candidates, who had applied by the last date
fixed i.e. March 5, 2021, but had some errors
or
discrepancy
about
their
uploaded
photographs or signatures, to rectify those
errors. There was no extension of the last date
for submission of the application form.
Contrary to the opinion of the learned Single
Judge, we think that the Notification/ Press
Note dated March 10, 2021 reinforces the
position that the last date for receipt of the
application forms from eligible candidates
was March 5, 2021.

35. Having found the legal position
obtaining in the case that the rule about the
date by which eligibility under the Third
Amendment Act has to be considered is the
last date, on which the application forms for
the examination in question have to be
submitted,
the
benefit
of
the
Third
Amendment Act, which came into force after
the last date for receipt of application forms
for the PCS Examination, 2021, would not
enure to the writ petitioners' benefit.

36.