Chief Justice's Court

Serial No. 3035

HIGH COURT OF JUDICATURE AT ALLAHABAD

***

SPECIAL APPEAL DEFECTIVE No. - 323 of 2022

(Arising out of Writ - A No. 18091 of 2021)

Decided on : October 18, 2022

Public Service Commission, Uttar Pradesh

through its Secretary …........... Appellant

Through :-Mr. Rakesh Pande, Senior Advocate with Mr.

Nipun Singh

v/s

JWO Satish Chandra Shukla and others

…........... Respondents

Through :-Mr. Ajay Mishra, Advocate General with Mr.

K.R. Singh, Chief Standing Counsel for

Respondent No. 5, Mr. A.B.N. Tripathi, Advocate

and Mr. T. Islam, Advocate for Respondent Nos.1

to 4

CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE

HON'BLE J.J. MUNIR, JUDGE

ORDER

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.

2 SPLAD No. 323 of 2022

3.The grievance of the writ-petitioners 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 writ-petitioner-

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 Ex-Servicemen 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

3 SPLAD No. 323 of 2022

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 Ex-

Servicemen. 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 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 Ex-Servicemen.

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 sub-Section (1) brought in through

4 SPLAD No. 323 of 2022

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 Ex-Servicemen) (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 sub-sections 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

5 SPLAD No. 323 of 2022

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

(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

6 SPLAD No. 323 of 2022

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

7 SPLAD No. 323 of 2022

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 ex-servicemen.”

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.

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

8 SPLAD No. 323 of 2022

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:

"उ0प0 लोक सेवा आयोग, पयागराज द्वारा सममम्मिलल रायय / पवर

अधीनस् सेवा परीका, 2021 ल्ा सहायक वन संरकक / केतीय वन

अधधकारी सेवा परीका, 2021 से संबंधधल ववजापन संखया- ए-1 / ई

-1/2021 वदनांक 05.02.2021 को जारी वकया गया ्ा जजसके

संबंध मे अभयय्यो से आनलाइन आवेदन पत वनधारररल अमममनलम धलि्

वदनांक 05.03.2021 लक पाराप वकये जा चुके है।

उक्त ववजापन से संबंधधल कधलपय अभयय्यो के फोरो व हसलाकर तुवर

पूरर पाये गये है , जजनकी सूचना आयोग की वेबसाइर

http://uppsc.up.nic.in पर उपलबध है। अलः उक्त ववजापन के

अभयय्यो को वदनांक 10.03.2021 से 17.03.2021 लक सही फोरो

व हसलाकर पुनः अपलोडा करने का अमममनलम अवसर पदान करले ह

ुए

उनसे अपेका की जाली है वक वे वनयल धलि् लक फोरो व हसलाकर

आयोग की उक्त वेबसाइर पर अपलोडा कर दे। वनयल धलि् के उपरानल

इस हेलु कोई अवसर नही पदान वकया जाएगा ल्ा इस स्बनध मे

वकसी परयावेदन पर ववचार वकया जाना स् व नही होगा।"

(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 Ex-Servicemen 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 Ex-Servicemen based on the Third

Amendment Act on ground that the third amendment is expressly

9 SPLAD No. 323 of 2022

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 Ex-Servicemen,

would qualify the preliminary examinations in the reservation

category and get a chance to appear in the main written test. It is on

this cause of action that the writ petitioners have instituted the writ

10 SPLAD No. 323 of 2022

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 Ex-Servicemen.

Call letters for interview have been directed to be issued accordingly.

11 SPLAD No. 323 of 2022

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

12 SPLAD No. 323 of 2022

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-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

13 SPLAD No. 323 of 2022

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

14 SPLAD No. 323 of 2022

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 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.

15 SPLAD No. 323 of 2022

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 Ex-Servicemen on posts under the State in Group B.

Earlier by the Second Amendment Act, reservation for Ex-Servicemen

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 Ex-

Servicemen. A statute of this kind, creating a new right, can hardly be

regarded as retrospective. Moreover, the Third Amendment Act

16 SPLAD No. 323 of 2022

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 Ex-Servicemen. 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 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

17 SPLAD No. 323 of 2022

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 pre-

amended 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

18 SPLAD No. 323 of 2022

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

19 SPLAD No. 323 of 2022

omission of a 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

sub-Section (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 (i-a) 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

sub-Section (1) of Section 3, substituted by the Third Amendment Act,

is not at all relevant. The learned Single Judge has clearly erred in

20 SPLAD No. 323 of 2022

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.

21 SPLAD No. 323 of 2022

(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.”

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:

22 SPLAD No. 323 of 2022

“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

23 SPLAD No. 323 of 2022

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 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,

24 SPLAD No. 323 of 2022

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.So far as the application of the principle of estoppel after sitting

the examination is concerned, the learned Single Judge has discarded

25 SPLAD No. 323 of 2022

it for reason that it would not be applicable to a case, where it is a

question of discrimination based on misapplication of the Rules. We

do not disagree with that part of the reasoning of the learned Judge,

but the same would be of no consequence in view of the other

findings of ours in this judgment.

37.In the result, this Appeal succeeds and is allowed. The

impugned judgment and order dated August 2, 2022 passed by the

learned Single Judge is set aside and the writ petition stands

dismissed.

Allahabad

18.10.2022

Anoop

Whether the order is speaking :Yes/No

(J.J. Munir)

Judge

(Rajesh Bindal)

Chief Justice