Jagdamba Prasad Singh v. State Of U. P. — 1996 DIGILAW 1317 (ALL)

Judgment : D. P. MOHAPATRA, CJ. 1. THE core question that falls for determination in these cases is what is the percentage of reservation for Backward Classes applicable to the recruitment in question? To be more specific, whether it is 15 per cent as prescribed under the U. P. Public Services (Reservation for Backward Classes) Act. 1989 (U. P. Act No. 21 of 1989) or 27 per cent as prescribed under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U. P. Act No. 4 of 1994). 2. THE factual backdrop of the case necessary for appreciating the contentions raised in the case may be stated thus on 4th of October, 1991, an advertisement was issued by the State of Uttar Pradesh inviting applications for the purpose of filling up of 475 posts of male Sub-Inspectors and 50 posts of female Sub-Inspectors in the State on direct recruitment basis. Subsequently, by means of corrigendum the number of vacancies were increased to 570 in respect of males and 60 posts in respect of females. For the purpose of selection, the candidates were to appear for (a) preliminary examination ; (b) physical test ; (c) written examination (main); (d) medical tests and (e) interview. A large number of candidates applied for the posts. A preliminary examination was conducted on 28th June, 1992, and result of the same was declared in the month of October, 1992. The successful candidates were required to undergo a physical test. The said test was held on 4th, 5th and 6th January, 1993 and the result was declared on 7th January, 1993. The writ petitioners/ respondents who had appeared in the preliminary examination and physical test were required to appear in the written examination (main) which was held on 8th and 9th January, 1993. All the petitioners appeared in the said examination. The result of the written examination (main) was declared on 19th of July, 1993 and 2382 candidates were declared to have qualified in the said examination. The successful candidates were to undergo medical test which is a prerequisite for the interview. The dates for interview were fixed between 24th September, 1993 and 19th October, 1993. Nine hundred sixty-one candidates were Interviewed between 24th September and 1st October. 1993. The successful candidates were to undergo medical test which is a prerequisite for the interview. The dates for interview were fixed between 24th September, 1993 and 19th October, 1993. Nine hundred sixty-one candidates were Interviewed between 24th September and 1st October. 1993. On 2nd October, 1993, a press note was issued to the effect that the Interviews which were scheduled to be held between 1st December, 1993 and 29th December, 1993 for the direct recruits were being postponed in pursuance of the direction issued by the State Government. 3. IN the meantime, Assembly elections took place between 18th November, 1993 and 21st November, 1993 and on 4th December, 1993 new Government was formed. The State Government informed the Director General of Police that it had decided to postpone the process of selection for the post of Sub-Inspectors (Civil Police) till further orders. Thereafter a press report was published by the Director General of Police notifying that the interviews which were scheduled to be held between 4th December, 1993 and 10th January, 1994 have been postponed. On 11th February 1994, the new Government issued an Ordinance with retrospective effect from 11th December. 1993, for making certain additional reservation for Scheduled Caste and Backward Class candidates. Clause 15 of the Ordinance, however, provided that the Ordinance shall not apply to the cases in which the selection process has been initiated. Subsequently, the Ordinance was replaced by Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994, (U. P. Act No. 4 of 1994) which was published IN the U. P. Gazette on 23rd March, 1994. On 9th of June, 1994, an order was issued by the Government stating that the entire selection process was being cancelled and it would start afresh. IN pursuance of the said order, the Director General of Police issued a consequential order on 10th of June, 1994, notifying that fresh orders will be issued shortly for starting entire selection process afresh. On 24th June, 1994, the Director General of Police issued a fresh advertisement for the posts of Sub-Inspectors. The writ petitioners, who were declared successful in the written examination (main) and most of whom had been selected for the interview and some of whom had already been interviewed, felt aggrieved by cancellation of the selection vide Government Order dated 9th June, 1994. The writ petitioners, who were declared successful in the written examination (main) and most of whom had been selected for the interview and some of whom had already been interviewed, felt aggrieved by cancellation of the selection vide Government Order dated 9th June, 1994. Therefore, they filed the writ petitions seeking quashing of the said Government Order and issue of a writ of mandamus to the respondents to proceed with the selection process already initiated. 4. THE gist of the case of the petitioners was that the action of the State Government in cancelling the selection process, in which considerable progress had been made and which was about to be completed, was wholly arbitrary, without any rational basis and justification. It was the further case of the petitioners that they had acquired a right to be considered for appointment to the posts in question on the basis of the selection process which had been initiated and which was continuing when the illegal order of cancellation was passed: In the counter-affidavit filed on behalf of the respondents, it was averred inter alia, that the State Government decided to cancel the selection process since there were certain irregularities in the advertisement issued for the selection and certain complications relating to the reservation policy could not be resolved despite best efforts. 5. THE learned single Judge, on consideration of the case of the parties and the contentions raised on their behalf, held, inter alia, that in the absence of any material placed before the Court, it was difficult to hold that the selection was cancelled on account of any irregularity in the process. On the second ground urged by the respondents in support of the cancellation order, the learned single Judge was of the view that Section 15 of Act No. 4 of 1994 is applicable in the case and as provided therein, the selection process which had already commenced was to continue and there was no reason for the Government to cancel it on the ground of enforcement of the provisions of U. P. Act No. 4 of 1994. On the above findings, the learned single Judge allowed the writ petitions, quashed the order of cancellation of the selection dated 9th June, 1994 and issued the following directions to the respondents : 1. On the above findings, the learned single Judge allowed the writ petitions, quashed the order of cancellation of the selection dated 9th June, 1994 and issued the following directions to the respondents : 1. That the process of selection, which had already commenced on the basis of the advertisement dated 4.10.1991 be completed to the extent of the posts advertised on the said date along with the corrigendum and selection list be prepared in accordance with the provisions of the Act and Government orders as they stood Immediately before 11th December, 1993, within three months, that is, with reservation of 27 per cent for Backward Classes, 18 per cent for Scheduled Castes and 2 per cent for Scheduled Tribes . (emphasis supplied) 2. That the posts which fell due after the advertisement of the posts on 4th October, 1991 and were not covered under the advertisement dated 4th October, 1991, including corrigendum, shall be conducted in accordance with the provisions of U. P. Act No. 4 of 1994. 6. THE appellants, who are general candidates and who were selected in the written test and were called for the interview, have filed these appeals challenging the direction in the operative portion of the Judgment that the percentage of reservation for Backward Classes shall be 27 per cent. According to them, the reservation should be confined to 15 per cent as prescribed under Act No. 21 of 1989. It is their further contention that the operative portion of the judgment is not in accordance with the observations and findings recorded in the body of the judgment. Correctness of the decision of the learned single Judge quashing the order of the State Government cancelling the recruitment process and directing fresh recruitment to be held is not challenged before us in the Special Appeals and, therefore, we are not called upon to decide the question. All that is under challenge in the present case is whether 27 per cent reservation for backward classes is legal and valid. The undisputed factual position that emerges from the discussions in the foregoing paragraphs is that on 4th of October, 1991, when the advertisement inviting applications for the posts was issued, and on 8th and 9th of January, 1993, when the written examination (main) was held, the prescribed quota of reservation for other backward classes was 15 per cent. The undisputed factual position that emerges from the discussions in the foregoing paragraphs is that on 4th of October, 1991, when the advertisement inviting applications for the posts was issued, and on 8th and 9th of January, 1993, when the written examination (main) was held, the prescribed quota of reservation for other backward classes was 15 per cent. Between October, 1991 and January, 1993 several Ordinances, that is, U. P. Ordinances No. 7 of 1991, 25 of 1991 and 35 of 1991, in which the prescribed quota was enhanced to 27 per cent, were allowed to lapse without any move on the part of the State Government to pass an enactment. We will consider the question whether the provisions in these Ordinances make any change in the legal position in the instant case a Utile later. 7. UNDER Section 2 of the U. P. Act No. 21 of 1989, it was provided that in public services and posts in connection with the affairs of the State, there shall be reserved inter alia, fifteen per cent of posts at the stage of direct recruitment in favour of backward classes of citizens specified in the Schedule In Group A, B and C posts. In Section 3 of U. P. Act No. 4 of 1994, it is laid down, inter alia, that in public services and posts, there will be reserved at the stage of direct recruitment 27 per cent of vacancies In favour of persons belonging to backward classes of citizens. Section 15 of the said Act, on interpretation of which the question raised in the case turns, is quoted hereunder- "15. Savings.-(1) The provisions of this Act shall not apply to cases in which selection process has been initiated before the commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and Government orders as they stood before such commencement. Explanation.-For the purposes of this sub-section, the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of- (1) written test or interview only, the written test or the interview as the case may be, has started, or (ii) both written test and interview, the written test has started. (2) The provisions of this Act shall not apply to the appointment, to be made under the Uttar Pradesh Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974." 8. ON a fair reading of Section 15, which is a saving provision in the Act, particularly the Explanation in sub-section (1) thereof, it is clear that the question is to be determined on the facts and circumstances of the case, that is, the stage of recruitment process on the date U. P. Act No. 4 of 1994 was enforced. From the provision in Section 15, the legislative intendment is clear that if the recruitment is one in which selection is based both on written test and interview, the date when the written test starts will determine the applicability of the Act and in a case where selection is based on written test or interview only, the date when the written test or interview, as the case may be, starts, will be the relevant date for the purpose. In the instant case, as noted earlier, the selection is based on written test (preliminary), physical test, written test (main and interview). An argument has been advanced from the side of the respondents that Explanation to sub-section (1) of Section 15 has no application in the case inasmuch as in addition to written test and interview some other tests are also prescribed for selection of candidates to the post. This contention, in our considered view, is not acceptable. As expressly provided in Section 15, the recruitment process is classified into two classes, one in which only one test written or interview is prescribed and the other class in which both written test and interview are prescribed. This fictional classification is made for the purpose of deciding the question which Rule or Act will be applicable in a case. Such being the legislative intent, accepting the contention of the learned counsel for the petitioner-respondents will defeat the very purpose of the statute since it would mean that the saving clause intended to make an incomplete classification of recruitments In different cases. We are of the view that the classification laid down in Explanation to sub-section (1) of Section 15 is complete and the class under which the recruitment in question falls is to be determined on the facts and circumstances of the case. We are of the view that the classification laid down in Explanation to sub-section (1) of Section 15 is complete and the class under which the recruitment in question falls is to be determined on the facts and circumstances of the case. In the case in hand, there can be little scope for doubt that the recruitment in question, which depends on written test and interview, falls under the latter class. In such a case, as provided in Section 15 (1), the date on which the written test starts is relevant for the purpose. The further question to be considered in this connection is which test is relevant for the purpose? Is it the written test (preliminary), or the written test (main)? A Full Bench of this Court in the case of Uma Shanker Singh and others v. Chairman, Public Service Commission, Uttar Pradesh and another, 1994 (2) UPLBEC 1412, held, inter alia, that the preliminary test is to test a candidate's general aptitude ; it is only when he qualifies for the main examination, he is more thoroughly tested in the various subjects and that the preliminary examination is only to screen out large number of candidates to find suitable candidates for the main examination. From the ratio of this decision, it is clear that the preliminary test is a screening test to select candidates for appearing in the main written test. What reasonably follows from this is that the written test, referred to in Explanation to sub-section (1) of Section 15, is the written test held for selection of candidates for appointment and not a written test held for screening candidates for appearing in the main examination. In that view of the matter, the date relevant for the purpose in the present case is 8th/9th of January, 1993, when the written examination (main) was held. The position is not disputed before us and it cannot also be disputed that on that date, the prescribed quota was 15 per cent for backward classes. By then, all the Ordinances which had been promulgated in 1990 and 1991, had lapsed without enforcement of any statute. This position appears to have been accepted by the learned single Judge in the discussions in his Judgment. By then, all the Ordinances which had been promulgated in 1990 and 1991, had lapsed without enforcement of any statute. This position appears to have been accepted by the learned single Judge in the discussions in his Judgment. While dealing with the second question, as stated, the learned single Judge has observed :- "Section 15 of the Act itself prescribes the manner in which the selection which has already commenced prior to the enforcement of U. P. Act No. 4 of 1994 will be carried on. The saving clause in statute preserves the existing rights or actions as provided under the Act...........................When Section 15 of the Act itself provides that the selection which had already commenced, as explained under the said section, the same is to continue. There is no reason for the Government to cancel it on the ground of enforcement of the provisions of U. P. Act No. 4 of 1994." "Clause 15 of the Ordinance itself saved the selection process which had already commenced." Referring to clause 15 of the Ordinance 3 of 1993 promulgated on February 11, 1994, giving it retrospective effect from 19th December, 1993, the learned Judge observed that the said clause of the Ordinance itself saved the selection process which had already commenced. This Ordinance was adopted by the U. P. State Legislature and was enacted as U. P. Act No. 4 of 1994. The aforementioned observations in the judgment make it amply clear that the learned Judge took the view that Section 15 of U. P. Act No. 4 of 1994 is applicable in the case. However, he did not feel it necessary to dwell on the question as to whether the amended Act or the Act which was in force at the time of advertisement of the posts on 4th October. 1991, will be applicable. Without going into that question, the learned Judge observed: "According to the Explanation referred to in Section 15 of the Act, such selection was to be governed on the basis of the Act, Ordinance and Orders of the Government which were applicable before enforcement of the Act. 1991, will be applicable. Without going into that question, the learned Judge observed: "According to the Explanation referred to in Section 15 of the Act, such selection was to be governed on the basis of the Act, Ordinance and Orders of the Government which were applicable before enforcement of the Act. The result was that on the date of commencement of the Act instead of 21 per cent reservation for the Scheduled Castes, as provided under the U. P. Act No. 4 of 1994, 18 per cent reservation was to be made for them but as regards Scheduled Tribes, it was 2 per cent and backward classes 27 per cent." He reiterated the same position in the operative portion of the Judgment, quoted earlier. The learned single Judge clearly erred in holding that reservation for backward classes will be 27 per cent in the case, particularly in view of his own finding that the selection is to be governed on the basis of the Act, Ordinance and Orders of the State Government, which were applicable before the enforcement of the Act. As we have held earlier, the relevant date for determination of the question is the date on which the written test (main) commenced and on that date, the prescribed reservation was 15 per cent, which was specified in U. P. Act No. 21 of 1989. 9. ANOTHER question that remains to be considered is the contention raised on behalf of the contesting respondents that they had acquired a vested right to have their cases considered on the basis of the Ordinance, Rule or enactment, which stood on the date of issue of advertisement and such vested right could not be divested by subsequent enactment. No doubt, it is the accepted principle that generally in the absence of anything to the contrary in the Act, Rule or Ordinance, expressing a different intendment, expressly or by necessary implication, the date of advertisement inviting applications is taken as the relevant date for selection of candidates for filling up the vacancies. But the position is different where the subsequent enactment contains a provision different from and contrary to the general rule. In such a case, it is the legislative intent as expressed in the subsequent enactment which will govern the case. But the position is different where the subsequent enactment contains a provision different from and contrary to the general rule. In such a case, it is the legislative intent as expressed in the subsequent enactment which will govern the case. If any authority is necessary in support of this position, we may refer to the case of P. Mahendrah and others v. State of Karnataka and others, AIR 1990 SC 405 , in which the Apex Court ruled, inter alia, that it is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words In the statute or in the rules showing the intention to affect existing rights, the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment, the rule cannot be given retrospective effect except in matter of procedure. 10. IN N. T. Devin Katti and others v. Karnataka Public Service Commission and others, 1990 (3) SCC 157 , it was held by the Apex Court that where the amended Rule or Order makes it expressly clear that the pending selection would not be governed by the amendment, there is no question of applying the new Rule or Order to the pending selection. Another well-settled position of law, which is relevant to note in this connection is that a candidate making an application for selection to a post does not acquire any indefeasible right for selection. All that he can, at best, claim is that he should be considered for such selection. To prop up our view, we may note a few decisions of the Supreme Court, that is State of M. P. and others v. Raghubir Singh Yadav and others, 1994 (6) SCC J 51. All that he can, at best, claim is that he should be considered for such selection. To prop up our view, we may note a few decisions of the Supreme Court, that is State of M. P. and others v. Raghubir Singh Yadav and others, 1994 (6) SCC J 51. IN that case, the Weight and Measures Department of the Madhya Pradesh Government invited applications for the posts of INspectors from eligible candidates ; the qualification prescribed for eligibility was degree in Art or Commerce or Science or Engineering or Diploma in Engineering ; written examinations were held, results were declared and interview cards were issued to successful candidates ; in the meanwhile, the Government amended the rules Madhya Pradesh Standard of Weights and Measurements (Enforcement) Rules, 1989 and altered the qualification for eligibility to the said posts to degree in Science with Physics or degree in Engineering or Technology or Diploma in Engineering ; pursuant to the amended rules, the Government withdrew the said notification and intended to proceed with the recruitment afresh under the amended rules. The Supreme Court held that the State has got power to prescribe qualifications for recruitment ; the instant case is not one of any accrued right; the candidates who had appeared for the examination and passed the written examination had only legitimate expectation to consideration of their claims according to the rules then in vogue ; the amended rules have only prospective operation ; the Government is entitled to conduct selection in accordance with the changed rules and make final recruitment; obviously no candidate acquired any vested right against the State, therefore, the State is entitled to withdraw the notification by which it has previously notified recruitment and to issue fresh notification in that regard on the basis of the amended rules. In Shankarsan Das v. Union of India, AIR 1991 SC 1612 , the Apex Court ruled that inclusion of candidate's name in the merit list does not confer any right to be selected. In Shankarsan Das v. Union of India, AIR 1991 SC 1612 , the Apex Court ruled that inclusion of candidate's name in the merit list does not confer any right to be selected. Elucidating the point, the Apex Court observed that it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied ; ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post; unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. 11. THE consequential position that emanates from the discussions in preceding paragraphs is that the contesting respondents have not acquired any indefeasible/vested right for appointment to the posts merely by virtue of inclusion of their names in the list of successful candidates in the written examination (main) or interview or both. Therefore, the contention raised on their behalf that the Ordinances, which were promulgated during the period between 1990 and 1991 prescribing 27 per cent reservation for backward classes, had vested any right in them to be selected on the basis of such reservation, cannot be accepted. We may reiterate here that all these Ordinances lapsed by efflux of time without enactment of any statute by the Legislature. THE last Ordinance in this series being U. P. Ordinance No. 3 of 1993, which was promulgated on 11th December, 1993, was followed by the enactment U. P. Act No. 4 of 1994, which was given retrospective effect from 11th December, 1993. It is significant to note that under Ordinance No. 3 of 1993, it was specifically provided that the recruitment process, which had already commenced, will not be affected by the Ordinance and the position was reiterated in Section 15 of the U. P. Act No. 4 of 1994. Therefore, the clear position that emerges is that the petitioner-respondents could not claim any indefeasible or vested right to be appointed on the basis of 27 per cent reservation quota for backward classes by relying on previous Ordinances promulgated between 1990 and 1991. Therefore, the clear position that emerges is that the petitioner-respondents could not claim any indefeasible or vested right to be appointed on the basis of 27 per cent reservation quota for backward classes by relying on previous Ordinances promulgated between 1990 and 1991. In this connection, reference may be made to State of Orissa v. Bhupendar Kumar Bose, AIR 1962 SC 945 , wherein, while considering the effect of expiry of an Ordinance on the right of the person, it was laid down as under: 'If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because, the statute by which it was created has expired. If a penalty had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute." THE same principle was reiterated by the Supreme Court in T. Venkata Reddy v. State of Andhra Pradesh, AIR 1985 SC 724 . As no right of enduring character had vested in the candidates who had applied for the post pursuant to the advertisement dated 4th of October, 1991, nothing survives after the expiry of Ordinances. 12. ON the analysis and discussion in the foregoing paragraphs we have no hesitation in holding that the learned single Judge has committed an apparent error in holding that 27 per cent reservation for backward classes will be applicable to the recruitment for the posts in question in the present case. In our considered view, such reservation would be only 15 per cent as prescribed under U. P. Act No. 21 of 1989. This is further manifest from the finding of the learned single Judge that 18 per cent reservation for Scheduled Castes as prescribed under U. P. Act No. 21 of 1989 and not 21 per cent as prescribed under U. P. Act No. 4 of 1994 will be applicable. The Judgment of the learned single Judge is modified to this extent only. The Special Appeals are disposed of accordingly. Parties will bear their own costs in both the cases.