The Allahabad High Court has observed that eligibility has to be judged on the basis of rules applicable on the last date of submission of the application form.
The Division Bench of Chief Justice Rajesh Bindal and Justice J.J Munir passed the order on a Criminal Appeal Defective filed by the Public Service Commission, Uttar Pradesh, through its Secretary.
The Special Appeal by the Uttar Pradesh Public Service Commission was directed against the order dated August 2, 2022, allowing the petition.
The writ-petitioners, who are respondent nos 1 to 4 to the 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.
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 ExServicemen) (Amendment) Act, 2021, entitling them to a five percent reservation in the ongoing selection/ recruitment, held pursuant to advertisement 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”.
The Single Judge has set out in copious detail the facts of the case, including the rival stands of writ-petitioners respondents and the Uttar Pradesh Public Service Commission, which need not be recapitulated here, except the essentials on which the event in the cause turns.
Prior to the enactment of The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, 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 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 five percent 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 UP Act No 6 of 1997, 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, two percent of vacancies shall be reserved for dependents of Freedom Fighters and one percent for Ex-Servicemen.
It is submitted by the Senior Advocate appearing for the Commission that the 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 ensure 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 ensure 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 stopped 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.
On the other hand, the Counsel for the writ petitioners have supported the impugned order and the reasoning of the Single Judge.
The Court observed, The remarks of the 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, which appeared to be based on unaccepted reasoning.
It has been remarked by the Judge that the writ petitioners here are Ex-Servicemen and at the time of submission of application forms, they have claimed that category for the purpose of age relaxation.
It has also been remarked by the 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.
So far as these findings of the Judge are concerned, the Courts 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.
The Third Amendment Act is clear in its intention and that it was applicable from the date when it was notified in the Official Gazette. It was clearly prospective in nature; not retrospective by any principle of construction.
It was 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, was 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 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 five percent 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.
The said Notification/ Press Note dated March 10, 2021, the Court opined that it has been patently misconstrued by the 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 Single Judge, the Court thinks 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.
“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.
So far as the application of the principle of estoppel after sitting the examination is concerned, the Single Judge has discarded 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 Judge, but the same would be of no consequence in view of the other findings of ours in this judgement,” the Court further observed while allowing the appeal.
“The impugned judgment and order dated August 2, 2022 passed by the Single Judge is set aside and the writ petition stands dismissed”, it ordered.