U.P. PUBLIC SERVICE COMMISSIONversusSATYA NARAYAN SHEOHARE & ORS

                         [2009] 4 S.C.R. 491


              U.P. PUBLIC SERVICE COMMISSION                       A
                                 v.
              SATYA NARAYAN SHEOHARE & ORS.
                 Civil Appeal No. 2627 of 2006
                       FEBRUARY 26, 2009
                                                                   B
           [R.V. RAVEENDRAN AND H.L. DATTU, JJ.]
~        U. P Public Services (Reservation for Schedule Castes,
    Scheduled Tribes and other Backward Classes) Act, 1994 -
    Section 15 - Entitlement to claim benefit of reservation -
    Recruitment to post of Civil Judge (Jr. Division) - On basis of c
    written test and interview - Respondents filed application as
    general category candidates -Before the written test
    commenced, State government issued notification amending
    the First Schedule to the Act and thus including the castes to
    which Respondents belonged, in the list of OBCs - D
    Respondents obtained caste certificates and claimed benefit
    of reservation as candidates belonging to Other Backward
    Classes - Representations not accepted - Writ petitions -
    High Court allowed the petitions and directed the Respondents
    to be treated as OBC candidates - Justification of - Held: E
    Justified - Status of Respondents as on the date when the
    selection process is deemed to have been initiated, is relevant
    to decide whether they were entitled to claim the benefit of
    reservation - Process of selection is deemed to have been
    initiated when the written test was started - Though F
    Respondents were general category candidates when the
    recruitment notification 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 and became
    entitled to claim the benefit of reservation.
~                                                                   G
          The appellant-Commission issued advertisement
    inviting applications for filling posts of Civil Judge (Junior
    Division) under the U.P. Nyayik Niyamavali 1951. The

                                491                                H
   492      SUPREME COURT REPORTS               [2009} 4 S. C.R.


A respondents filed application as general category
  candidates. Meanwhile, the State Government added the
  castes of 'kalar' and 'kalal' in the list of Other Backward
  Classes by amending the First Schedule to the U.P. Public
  Services (Reservation for Scheduled Castes, Scheduled
B Tribes and Other Backward Classes) Act, 1994.
        The respondents who belonged to the 'kalar'/kalal
  caste obtained caste certificates and made represen-
  tations to the Appellant Commission to extend them the
  benefit of reservation as candidates belonging to Other
C Backward Classes. The representations were not
  accepted and the Respondents were considered as
  general category candidates. The respondents were not
  selected. Feeling aggrieved, they filed writ petitions before
  the High Court contending that they ought to have been
0 treated as OBC candidates. The High Court allowed the
  petitions and directed the respondents to be treated as
  OBC candidates.
         Disposing of the appeals, the Court
       HELD: 1. Section 15 of the U.P. Public Services
E (Reservation for Schedule Castes, Scheduled Tribes and
  other Backward Classes) Act, 1994 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
F 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
G (where the recruitment was on the basis of written test
  and interview). On account of this special deeming
  provision, reservzition provision in the Act became
  applicable even in regard to recruitment notifications
  issued prior to the commencement of the Act, provided
H the written test had not commenced as on the date of
               U.P. PUBLIC SERVICE COMMISSION V.              493
                SATYA NARAYAN SHEOHARE & ORS.

1   commencement of the Act. Section 2(b) of the Act defines A
    '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 B
    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 c
    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
                                                               0
    amendment to the Act would be the date of commen-
    cement of the Act in regard to such caste/class inserted
    by the amendment. [Para 5] [498-A-G]
          2. It is evident from the explanation to sub-section
    (1) of Section 15 that where, under the relevant service E
    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
    has 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 F
    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
    respondents belonged, in the list of OBCs. Therefore,
    though the respondents were general category
    candidates when the recruitment notification dated G
    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
                                                                    H
    494      SUPREME COURT REPORTS              [2009] 4 S.C.R.


A   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
B   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
C   the Act, the decision of the High Court directing that the
    Respondents should be treated as OBC candidates does
    not call for any interference. [Para 6] [498-G-H; 499-A-E]
        3. The selections and appointments in regard to the
  2000 advertisement were completed long back and
D thereafter appointments have been made even in respect
  of subsequent selections in 2003 and 2006. But 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 respondents should be treated as OBC
E candidates or general category candidates having regard
  to the fact that they had applied as general category
  candidates. Therefore, when the Commission treats the
  respondents as OBC candidates and selects them on
  account of their marks/rank being more than the last
F 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 respondents, if found
  entitled for selection and appointment with reference to
G their rank, will be prospective in nature. [Para 7] [499-F-H;
  500-A-B]
         CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2627
    of 2006
H         From the Judgement and Order dated 27.02.2003 of the
                U.P. PUBLIC SERVICE COMMISSION V.                 495
                 SATYA NARAYAN SHEOHARE & ORS.

i   Hon'ble High Court of Judicature at Allahabad in Civil Misc. A.
    Petition No. 42207 of 2001.
                                  WITH
         Civil Appeal No. 2632 of 2006
          Shail Kumar Dwivedi, Manoj Kr. Dwevedi, Vibha Dwivedi, B
    for the Appellant.
         Nagendra Rai, Shantanu Sagar, Shree Pal Singh, Mohd.
    Mannan, Ashok K. Srivastava, lndrajeet Das, Pradeep Mishra,
    Gaurav, Agrawal, Vivek Singh, Vendana Mishra, Shirish Kr.           c
    Mishra, for the Respondent.
         The Judgement of the Court was delivered by
         R. V. RAVEENDRAN J.

)         The appellant Uttar Pradesh Public Service Commission, D
    ('Commission' for short) issued an advertisement dated
    4.3.2000 inviting applications for filling 14 ?.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:-                         E
          "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 F
          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."
                                                                    G
          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
     1
    6 h August 2000 and the two candidates participated in the said
    examination as general category candidates.
                                                                    H
    496      SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A         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
B   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
c   to the Commission to accept their caste certificates and extend
    them the benefit of reservation as candidates belonging to other
    backward 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
0
    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
E   and 19.12.2003, allowed their petitions following its earlier
    decision in Km. Amrita Singh & Ors. v. State of UP& 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.
F
         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
G   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
H         shall be dealt with in accordance with the provisions of
                   U.P. PUBLIC SERVICE COMMISSION V.     497
          SATYA NARAYAN SHEOHARE & ORS. [R. V. RAVEENDRAN J.]
     -~
               law and government orders as they stood before such A
               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 -                                  B

               (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 intervieVoJ, the written test has
                      ~~.                                                       c
                      )()()()()(


                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 D
          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     E
          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         F
          reservation in their application and enclose the certificate issued
          by the 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    G
          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.                                           H
    498      SUPREME COURT REPORTS                   [2009] 4 S.C.R.


A         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
B   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
C   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
    commencement of the Act, provided the written test had not
    commenced as on the date of commencement of the Act.
D   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
E   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,
F   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
G   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
H
         U.P. PUBLIC SERVICE COMMISSION V.     499
SATYA NARAYAN SHEOHARE & ORS. [R. V. RAVEENDRAN J.]

initiated on the date on which written test was started. In this       A
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,   B
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            C
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 commen-                D
cement 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         E
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.

      7. It should be noted that the selections and appointments F
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 G
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 H
    500      SUPREME COURT REPORTS                   [2009] 4 S.C.R.


A   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
B   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.

    B.B.B.                                     Appeal disposed of.