Arun Tandon, J.
1. These two writ petitions have been filed by three petitioner who belong to 'Gond' Caste. The aforesaid caste was notified as a Scheduled Caste under the Constitution (Scheduled Caste Order 1950). That the Parliament by means of Scheduled Castes and Scheduled Tribes order (Amendment Act 2002) being Act No. 10 of 2003 published in official Gazette of India dated 8.1.2003 notified the Gond caste as a Scheduled Tribe. The aforesaid facts are not in dispute.
2. On 1.9.2001 an Advertisement was published by the Deputy Inspector General of Police inviting applications for the post of Sub Inspector (Civil Police)/Platoon Commander. Petitioners in accordance with the provisions of the Constitution Scheduled Castes Order 1950 applied for being considered for the post in question under the reserved category of Scheduled Castes. Along with their applications they also enclosed copies of the caste certificates issued by the district authorities in their favour. That the petitioners participated in the said examination and the final results of the selections so held was declared on 3.9.2005. The petitioners were not included in the list of selected candidates as they were treated to be the members of the Scheduled Castes. The claim of the petitioner against the reserved category of Scheduled Tribes was not considered despite the Parliamentary Act No. 10 of 2003. Faced by the aforesaid situation petitioners have approached this Court with the allegations that more than 50% of the vacancies within the quota reserved for Scheduled Tribes which have been advertised are still available and, therefore, the respondents may be directed to consider the claim of the petitioner against the said available vacancies of Scheduled Tribes category treating the petitioner to be members of Scheduled Tribes in view of Parliamentary Act No. 10 of 2003.
3. The writ petition filed by the petitioner is opposed by the State authorities with reference to the full bench judgment of this Court in the case of Prashant Kumar v. State of U.P. 2005 (3) A.W.C. Page 2738. Respondents contend that since in their application petitioners had claimed that they belong to Scheduled Caste category and had also enclosed certificates in support thereof, their claim for appointment against the advertised vacancies has accordingly been considered in the said category alone. Since the petitioners are lower in merit then the selected candidates in the said scheduled castes category, they have rightly not been selected.
4. Heard Shri Ashok Khare, Senior Advocate, on behalf of the petitioner assisted by Shri Amit Kumar. It is contended that in view of Clause 6 Of the Advertisement read with paragraph 30 Of the judgment of the full bench referred to above, the petitioners are entitled to be treated as members of Scheduled Tribe as on the date of declaration of results, Act No. 1.0 of 2003 had been enforced. The action of the respondents n not considering the petitioners, and declaration of results in the said category is legally not justified.
5. From the rival contentions raised on behalf of the parties it is apparent that the petitioners as well as respondents rely upon the full bench judgment of this Court specifically paragraph 30 of the said judgment wherein answer to the question referred has been recorded. Paragraph 30 of the judgment in the case of Prashant Kumar (Supra) reads 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.
6. From the aforesaid full bench judgment, it is clear, that subject to the . provisions of the Rules, terms of Recruitment/Advertisement, the caste as notified up to the last date of the filing of the application form for the selections shall be treated to be final irrespective of the subsequent changes for considering the claim of the candidate concerned. This leads us the as to the issue as to whether under the terms and conditions providing for reservation in the facts of the present case was , what was the crucial date for deciding the category of the applicants. For consideration of the issue it would be worthwhile to reproduce Clause Six of the Advertisement dated 15th October, 2001 which reads as follows :
(6) Arakshan : Is Chayan Mein Anusuchit Jati/Anusuchit Janjati/Anya Pichhra Varg Tatha Anya Shreniyon Ke Arakshan Hetu Nimnawat Pravidhan Nirdharit Hain:-
Up Nirikshan Na. Pu./Platoon Commander P.A.C. Ki Bharti Ka Pariksha Parinam Nikale Jane Ke Samay Raiyadhin Sewaon Mein Sidhi Bharti Ke Prakaran Per Vidhyaman Arakshit Varg Ko Arakshan Ka Labh Ukt Samay Per Sangat Adhiniyam/Aadesh Ke Antargat Uplabdh Arakshan Vyavastha Ke Anusar Diya Jayega.
1. Swatantrata Sangram Senaniyon Ke Ashrit, Sena Ke Viyojit Karmchari, Shreniyon Ke Arakshit Riktiyon Per Chayanit Vyaktiyon Ko Usi Arakshit Varg Mein Rakha Jayega Jinse Sambandhit Hai. Udaranarth- Yadi In Shrenoyon Ka Koi Vyakti Anusuchit Jati Varg Se Sambandhit Hai To Use Avashyak Samayojan Karke Anusuchit Jati Mein Rakha Jayega. Yadi Vah Anusuchit To Use Avashyak Samayojan Karke Anusuchit Janjati Varg Mein Rakha Jayega. Yadi Vah Pichhre Varg Se Rakha Jayega, Isi Prakar Yadi Vah Samanya Varg Se Sambandhit Hai To Use Anya Arakshit riktiyon Ke Samaksh Samayojit Kiya Jayega.
2. Upyukt Samayojan Ke Paschat Uchtam Nyayalaya Ke Nirye Ke Anusar Arakshan Ka Pratishat Kisi Bhi Sthiti Mein 50% Se Adhik Ka Nahi Hoga.
3. Arakshan Ka Labh Pane Hetu Abyarthi Dwara Avedan Patra Mein Ek Bar Jis Varg Vishesh Ka Ullekh Kiya Jayega Vahi Chayan Ke Ant Tak Manya Hoga. Avedan Patra Prastut Karne Ke Bad Varg Vishesh Ka Parivartan/Parivardhan Ke Sambandh Mein Koi Prarthna Patra Swikar Nahi Kiya Jayega.
7. From Clause Six it is apparently clear that the crucial date fixed for determination of the reservation applicable has been fixed as the date on which the result of the said selections are to be notified meaning thereby that the claim of reservation of the candidate against a particular category concerned would be determined in accordance with the Government Order/Rules which may be applicable on the date on which the results of the selections are declared.
8. Standing Counsel has submitted that the note appended to Clause 6 makes it clear that no change in the caste as mentioned in the application form would be entertained after the application has been accepted and, therefore, change effected by Parliament Act No. 10 of 2003 cannot come to the rescue of the petitioners and they are to be treated as members of Scheduled Castes only. Therefore, merit has, therefore, been considered in the said category and they have not been selected against the said reserved category of Scheduled Castes.
9. In the opinion of the Court the note appended to Clause 6 of the Advertisement has to be read in conjunction with the main clause. A reading of the two clauses together would establish that the change in the reserved category effected under orders of the government or by statutory provisions would take effect automatically, the category of the candidates is to be determined with reference to the Government Order/Statutory Provisions which regulate the reservation on the date the result of the selection is declared. Such change in the category of reservation is not because of any act of the applicants but because of orders of the State Government or provisions of law. What is debarred under the note appended to Clause 6 is voluntary act of the applicants to seek change in the category as mentioned in their application form. Clause 6 of the Advertisement, therefore, means that an applicant is not entitled to seek any change in category which he has mentioned in the application form. However changes effected in the reservation by the State Government or by an Act of Parliament, till the date of declaration of result would become applicable automatically and the candidate concerned is liable to be considered against a particular reserved category with reference to the provision as is applicable on the date of declaration of the result of the selections. It may also be noticed that change in reservation can be of three categories :
a. There may be a change in the percentage of reservation provided for a particular category.
b. Reservation can be provided for a first time not provided for earlier, for example reservation for women in the facts of this case.
c. There can be an inclusion or exclusion of a particular caste for Scheduled Castes/Scheduled Tribes as notified with reference to Article 341/342 of the Constitution by an Act of Parliament.
10. All these three kinds of reservations are covered by the Clause 6 of the Advertisement and any of the aforesaid three categories of changes effected by the competent authority prior to the declaration of result has to be given effect to under the terms of the Advertisement.
11. In view of the aforesaid conclusion read with paragraph 30 of the Full Bench judgment of this Court it is hereby held that the petitioner are entitled to be treated as members of Scheduled Tribes in view of Act No. 10 of 2003 and the respondents are under legal obligation to reconsider and declare the results of the petitioners treating them to be the members of the Scheduled Tribe category if sufficient umber of vacancies are available the petitioners are also be entitled for appointment provided they are declared successful subsequent to declaration of their results. The aforesaid exercise must be completed within four weeks from the date a certified copy of this order is filed before Respondent No. 1.
12. Writ petition is accordingly allowed.