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2016 DIGILAW 859 (UTT)

Archana Devi v. State of Uttarakhand

2016-11-21

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. The petitioner belongs to the Other Backward Classes (in short “OBC”) community i.e. “Saini” and was a candidate for the post of Auxiliary Nurse Midwife (in short “ANM), for which the Government of Uttarakhand had advertised 440 vacancies on 15.03.2016. Out of 440 posts, 163 posts have to be filled by OBC candidates. 2. The contention of the petitioner is that advertisement for the said vacancies is of 15.03.2016 and the last date of submission of application form is 10.04.2016. After the cut-off date i.e. 10.04.2016, the State Government has come up with a notification, which is published under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, which is presently applicable in the State of Uttarakhand on 20.05.2016, by which the “Fikwal” community of Pratap Nagar, District Tehri Garhwal, Uttarakhand has been declared as OBC community. The notification to this effect has come only on 11.06.2016. Hence, the contention of the petitioner would be that the effective date when the Fikwal community has been declared as an OBC would be 11.06.2016. 3. Certain communities have been declared as OBC community under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, which have been given in Schedule I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, which is applicable in the State of Uttarakhand. The powers have further been given to the State Government under Section 13 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 to amend the Schedules. Section 13 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 Act reads as under:- “Section 13. Power to amend the Schedules.- The State Government may, by notification, amend the Schedules and upon the publication of such notification in the Gazette, the Schedules shall be deemed to be amended accordingly.” 4. It was under the powers vested with the State Government under Section 13 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, the State Government has taken a decision for declaring the “Fikwal” community as an OBC community. It was under the powers vested with the State Government under Section 13 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, the State Government has taken a decision for declaring the “Fikwal” community as an OBC community. The only question would be as to what would be the effective date when such benefits can be given to the community. The contention of the petitioner would be that this would be only from 11.06.2016 as the notification of the State Government which is annexed as Annexure No. 6 to the writ petition says that Fikwal community will be treated as an OBC community from the date of publication of the notification. 5. The State Government in its counter affidavit has taken a stand that it is not that any benefit is being given to the candidates, what is being done is that such candidates from Tehri Garhwal District belonging to Block Pratap Nagar who had already applied as ANM in pursuance of the said advertisement are allowed to submit their OBC certificates with the authorities. 6. The contention of the petitioner, however, would be that whichever way we look at it, the notification of the State Government is absolutely clear, which is to grant the benefit of OBC to Fikwal community in the ongoing selection process, which cannot be given, in the ongoing exercise. 7. Learned counsel for the petitioner has relied upon a decision of Full Bench of Allahabad High Court in the case of Prashant Kumar Vs. State of U.P. and another reported in 2005 (3) AWC 2738 (FB), where the question was whether the “Jaat” community, which has been declared as OBC community, subsequent to an advertisement, can be given such benefit or not, and the answer was in negative. State of U.P. and another reported in 2005 (3) AWC 2738 (FB), where the question was whether the “Jaat” community, which has been declared as OBC community, subsequent to an advertisement, can be given such benefit or not, and the answer was in negative. The relevant paragraph of the said judgment reads as under:- “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-1 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.” 8. The reasoning of the Full Bench of Allahabad High Court in the aforesaid case is absolutely clear which is that the Government notification is always prospective in nature, unless the notification itself clearly shows that it is having retrospective effect. 9. The notification dated 20.05.2016, by which the Fikwal community has been declared as an OBC community clearly states that the effective date of publication of the notification would be the date when the gazette is notified. The gazette notification is of 11.06.2016. Hence, the effective date, when the Fikwal community has to be seen as OBC is 11.06.2016. It cannot be given any retrospective benefit, particularly in public services, where procedure has already taken place where the last date of submission of application form was 10.04.2016. 10. In view thereof, the writ petition succeeds. Annexure No. 6 to the writ petition is hereby quashed. 11. Let a certified copy of this order be issued within a period of forty-eight hours on payment of usual charges.