The Allahabad High Court has said that any change in the reservation Policy subsequent to the start of recruitment process could not be introduced at any intermediate stage of the proceedings.
A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a petition filed by Shivam Pandey and 11 Others.
The provisions of this Act shall not apply to cases in which the selection process has been initiated before commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and Government order as they stood before the commencement.
Issue before the Court for consideration are:-
(i) “Whether in pursuance of 103rd Amendment in Constitution of India dated 12.01.2019, whereby provision for 10% reservation to Economically Weaker Sections (EWS) and adopted by State of Uttar Pradesh through Office Memorandum dated 18.02.2019) would be applicable to a Notification dated 16.05.2020 issued by State Government in regard to selection on 69000 posts of Assistant Teachers?”
(ii) “Whether selection process would consider to be commenced when on 01.12.2018 (i.e before Constitutional Amendment), when State Government issued a Government Order for conducting Assistant Teachers Recruitment Examination-2019 (ATRE-2019), a qualifying examination to participate in above referred selection process? and;
(iii) “What would be the effect of Uttar Pradesh Public Services (Reservation for Economically Weaker Section) Act, 2020?”
It is case of petitioners that on 01.12.2018, the State Government issued a Government Order for conducting “ATRE2019”, which was conducted on 06.01.2019. The petitioners have participated in said examination under Unreserved (General) category and result thereof was issued on 12.05.2020, wherein all petitioners were qualified i.e. have scored more than minimum qualifying marks.
It is further case of petitioners that on 16.05.2020, the State Government initiated further process of selection of 69000 posts of Assistant Teachers for appointment in primary education in State of U.P Meanwhile, in pursuance of 103rd Amendment in Constitution, petitioners have got their EWS certificate issued by competent Authority and they have represented before concerned respondents to provide 10% reservation of EWS.
The petitioners approached the Court in June, 2023. During the pendency of their writ petition, the process of selection was completed and petitioners were not selected since they were placed lower in merit.
The Court observed that,
In the case, i have heard counsel for parties at length, however, they have not placed on record that State of U.P has enacted an Act for implementation of EWS reservation by way of enactment of Uttar Pradesh Public Services (Reservation for EWS) Act, 2020 (U.P Act No 10 of 2020) published in Gazette on 31.08.2020.
U.P Act No 10 of 2020 was published in the Gazette on August 31, 2020. According to Section 1(2), this Act shall be deemed to have come into force on February 01, 2019. Section 13 provides that “the provision of this Act shall not apply to cases in which the selection process has been initiated before commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and Government Order as they stood before commencement. The office memorandum (O.M) dated 18.02.2019 and 13.08.2019 shall be deemed to have been issued under this Act.
In this case, the ATRE Examination (a qualifying examination) was held on 06.01.2019 i.e prior to the 103rd Constitutional Amendment. Further selection process of appointment of 69000 posts of Assistant Teachers was commenced from 16.05.2020 i.e after 103rd Constitutional Amendment but before enactment of U.P Act No10 of 2020 i.e on 31.08.2020, therefore, as per savings clause (Section 13), provisions of U.P Act No 10 of 2020 would not be applicable and it would be governed by provisions of law and Government Order as they stood before the commencement of U.P Act No 10 of 2020.
Now I proceed to consider the effect of the Office Memorandum dated 18.02.2019 issued by the State of U.P and the effect that U.P Act No 10 of 2020 deemed to have come into force on 01.02.2019. I have carefully perused the said O.M. It notes that the Social Welfare Department of State of U.P has decided to provide 10% reservation to EWS in all State services as well as in Educational Institutions and also determine factors for granting benefits to EWS.
The Court considered scope of above referred clause 4 (IV) of O.M dated 18.02.2019 that since selection process for recruitment of 69000 Assistant Teachers was commenced (if the argument of petitioner is deemed to be accepted) with a G.O dated 16.05.2019 i.e after 18.02.2019, whether State of U.P was under a legal obligation to provide reservation for EWS or not?
The above referred part of O.M stated that arrangement of reservation to EWS will be applicable on notification issued after 01.02.2019 for recruitment of State services, however, at that stage, no Act was enacted in the State of U.P and above arrangement was provided by an Office Memorandum. Later on, it was validated by way of enactment of U.P Act No 10 of 2020.
The Court further observed that, later on U.P Act No 10 of 2020 was enacted on 31.08.2020 with a specific saving clause that provisions of this Act shall not apply to cases which were initiated before commencement of Act and admittedly in the case, process of selection was initiated prior to 31.08.2020 (as per stand of both parties). An Act has always more legal value in comparison to any Office Memorandum, therefore in case of any ambiguity, provisions of Act No 10 of 2020 would prevail. Section 7 of U.P Act No. 10 of 2020 provides that O.M dated 18.02.2019 shall be deemed to have issued under said scheme and O.M was provided legal sanctity only after aforesaid Act was come into force and not before it and since procedure for selection for 69000 posts of Assistant Teachers was commenced prior to 31.08.2020, therefore, State of U.P was not legally bound to provide EWS reservation in said recruitment process.
By validating O.M dated 18.02.2019, the Act has validated if any reservation was provided to EWS on basis of said O.M prior to enactment of U.P Act No 10 of 2020, but it could not be correct to hold that on basis of said O.M, State was bound to provide reservation to EWS in all selection process, even prior to commencement of U.P Act No 10 of 2020 and it was only after enactment of said Act, the State is under a legal obligation to provide reservation to EWS and not before it.
“In aforesaid circumstances, the Court is not entering to the dispute whether ATRE Examination is a starting point of recruitment process of Assistant Teacher or not as in view of above discussion, it does not require as well as in view of above discussion, other argument of petitioners’ side has no legal basis as well as judgments cited are distinguishable on facts as well as on law” the Court also observed while dismissing the petitions.