Allahabad High Court Upholds Denial Of EWS Reservation To 69,000 Assistant Teachers As Recruited Candidates Were Not Made Party To Suit

The Allahabad High Court has upheld the order of a Single Judge, denying the benefit of reservation under the Economically Weaker Section category for recruitment to the post of Assistant Teachers held in 2020.The Single Judge had refused to extend the benefit to the candidates of the recruitment held in 2020 as the process was initiated before the enactment of the Uttar Pradesh Public Services (Reservation for EWS) Act, 2020. Justice Saurabh Shyam Shamshery had held that though the process of recruitment had commenced after the 103rd Constitutional Amendment, the Uttar Pradesh Public Services (Reservation for EWS) Act, 2020 (U.P. Act No. 10 of 2020) was enacted after the recruitment process had already commenced. Therefore, the Act was held to be not applicable to the recruitment on 69000 posts of Assistant Teachers.Though the bench of Justice Ashwani Kumar Mishra and Justice Praveen Kumar Giri had differed from the opinion of the Single Judge, they gave the same conclusion, upholding the order of the Single Judge in special appeal. Regarding the office memorandum dated 18.2.2019 by which EWS reservation was introduced in the State of U.P., the Court held that the same was retrospectively applicable, though it was validated by the Act on a later date. Though the Court came to the conclusion that the benefit was liable to be extended for the impugned recruitment process, the same could not be done now as the persons who had already been appointed and working had not been made party to the writ petitions. Section 1(1) of the Act provided that the Act shall apply from 1st February, 2019. Further, Section 3(3) provides that the office memorandum dated 18.2.2019 which provided EWS reservation in the State of UP prior to the enactment of the law, shall deemed to have been issued under Section 3(3). Section 13 of the Act (savings clause) provides that the Act shall not apply to recruitment process commenced before the Act and such process shall be governed by law and government orders as they stood before the commencement of the Act. Petitioners argued that since advertisement was published on 17.5.2020 whereas the policy was implemented in the State of UP on 18.2.2019, therefore, the petitioners were entitled to EWS reservation. The Court observed that a Government order was issued on 1.12.2018 for initiating the process of recruitment for 69000 Assistant Teachers in which there was nothing to show that horizontal or vertical reservations on the posts were prescribed. The exam was conducted on 6.1.2019 and thereafter, on 16.5.2020 a GO was issued commencing the process of appointment as assistant teachers as per U.P. Basic Education (Teachers Service) Rules, 1981.The Court held that the State Government was valid in issuing the office memorandum dated 18.2.2019 providing EWS reservation in the State and later validating it by the Act. It held that since Section 3(3) and 3(4) provided that the Office memorandum dated 18.2.2019 shall be deemed to be issued under Act, it was not possible to hold that the OM will apply from the date of commencement of the Act, 31.8.2020, and not from 18.2.2019.“Law is well settled that appropriate legislature can always introduce legislation with retrospective effect. We may also note that by 103rd Constitutional Amendment enabling provision was made for the States to provide for reservation to EWS candidates. It is well settled that executive powers of State is co-extensive with its legislative power. Once provision for EWS reservation was made available to the State by virtue of 103rd Constitutional Amendment it was open for the State to implement EWS reservation either by making legislation or by issuing executive instructions.”Further, observing that the date of commencement of the recruitment process is the date on which advertisement is published, the Court upheld the observation of the Single Judge that the recruitment process commenced with issuance of advertisement dated 17.5.2020. However, the Court held that in view of the above, the benefit of EWS reservation ought to have been extended to the candidates. Since candidates had already been appointed on the said posts and had been working, the Court held that in absence to challenge to their appointment and them being made parties to the writ petitions, their appointments could not be disturbed. Further, the Court observed that at no stage was the detail regarding candidates' EWS status was asked, so now it would be difficult to acquire that information and process the same. “In such circumstances, it would not be prudent exercise of discretion for this Court to issue any direction to extend 10% EWS reservation in the recruitment in question, at this stage, as implementation of such direction would be a mere impossibility. It is otherwise settled that without impleadment of persons affected or any challenge made to their appointment no direction can be issued which has the effect of dislodging selected...

Allahabad High Court Upholds Denial Of EWS Reservation To 69,000 Assistant Teachers As Recruited Candidates Were Not Made Party To Suit

Upasna Agrawal

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