ARUN TANDON,J. - (1.) An important issue has cropped up for consideration in the present special appeal that is once the Apex Court in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar and Others reported in (2012) 7 SCC 1 , has struck down the provisions of Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and further since the Apex Court in the case of Suresh Chand Gautam v. State of Uttar Pradesh reported in (2016) 11 SCC 113 , has categorically held that the judgment in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar and Others (Supra), has to apply retrospectively and not prospectively only and that appointments already made with the benefit of Section 3(7) of the Act 1994 are not saved, does it not as a necessary corollary follow that wherever there has been denial of promotion because of applicability of Section 3(7) on the promotional post, that error must also be corrected. The right, of a person who was denied such promotion because of reservation being applied, must be restored from the due date subject, however to the facts of the case permitting so.
(2.) With the declaration of Section 3(7) as ultra vires all positive acts of the State authority granting promotion with the help of the said section have to be struck down as has been rightly done by the State Government with the issuance of Government Order dated 21.8.2015. What should be the action in respect of the negative acts of the authorities in refusing to grant promotion because of the reservation having been applied under Section 3(7) of the Act 1994 at the relevant time is what we propose to consider and decide in this petition.
(3.) Should this Court in exercise of powers under Article 226 of the Constitution of India permit a writ petitioner to suffer even after the law has been clarified by the Apex Court in the matter of reservation being not applicable on promotional posts and Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as 'Act 1994') having been declared to be ultra vires. Is it the duty of the Court to direct the authorities to restore back to the petitioner/appellant what was denied to him only on the ground of application of reservation on the promotional post. In our opinion the answer has to be in favour of the wronged one.;