Monika vs State Of U.P. And 5 Others
2017 Latest Caselaw 2846 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 17
 

 
Case :- WRIT - A No. - 33578 of 2017
 

 
Petitioner :- Monika
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

This petition has been made under Article 226 of the Constitution by a dependent of a freedom fighter. She is seeking quashing of the order dated 8.6.2017 passed by the Principal, District Institute of Education & Training, whereby her claim for appointment under the quota of freedom-fighters has been rejected.

The foundational facts are briefly stated; the State Government issued an order inviting applications for the recruitment of 72825 trainee teachers in the State. Pursuant thereto the District Basic Education Officers of different districts of the State invited applications from eligible candidates for the appointment to the posts of trainee teachers. The petitioner claims that since she possesses essential qualification in terms of the advertisement and the relevant rules, she applied in as many as 40 districts including District Azamgarh for consideration for her appointment to the post of trainee teacher.

The petitioner is graduate and she did her B.Ed.. She has also passed UP TET-2011 (Primary Level) and has secured 98 marks. She belongs to Other Backward Classes (OBC) category.

The petitioner claims that her mother Smt. Pushpa Devi is the daughter of Late Hardev Singh son of Late Matadin who was the freedom-fighter and has been issued a freedom-fighter certificate by the District Magistrate, Ghazipur. A copy of the said certificate is on the record.

Under the provisions of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters, Ex-servicemen) Act, 19931 in public services and posts two percent of vacancies are reserved for the dependents of freedom fighters. However, under the definition of the dependents with reference to freedom fighters only son and daughter (married or unmarried), grandson and granddaughter of a son (married or unmarried) were entitled for the said benefit.

Since the children of a daughter of freedom-fighter are excluded, its validity was challenged before this Court. This Court in the case of Isha Tyagi v. State of U.P. And others2 held that denying the benefit to the children of daughters of a freedom-fighters is discriminatory and contrary to basic constitutional norms. Accordingly, the Court issued a direction that neither a married daughter nor her children would be disqualified from receiving the benefit of reservation.

Consequent thereupon, the provisions of the Act, 1993 were amended vide notification dated 7.4.2015 whereby the children of daughter of a freedom-fighter were also included in the definition of Section-2 of the Act, 1993. The petitioner after the amendment in the Act, 1993 applied for the certificate of dependent of freedom-fighter which was duly issued to her by the District Magistrate on 19.6.2015.

On the basis of the said certificate and the law laid down by this Court in Isha Tyagi (supra) she made a representation to the Director, State Councill of Educational Research & Training, but it has failed to elicit any response from him. The petitioner preferred Writ-A No. 62631 of 2014, Km. Monika v. State of U.P. & Ors.). In the said writ petition an interim order was passed on 21.11.2014 allowing her to appear in the ongoing counselling of trainee teachers 2011 provisionally.

On 14.4.2015 the District Basic Education Officer3, Azamgarh notified the cut-off merit for consideration for different categories and fixed 16.4.2015 the date of counselling. The cut-off marks for the women candidates belonging to dependents of freedom-fighters was notified to be 91. The petitioner had passed her UP-TET, wherein she has secured 98 marks thus she was fully eligible for the appointment.

The petitioner was compelled to file again a writ petition being Writ-A No. 24042 of 2015. Both of her writ petitions were decided by a common judgment and order dated 30.3.2017 leaving it open to the petitioner to make a representation before the Principal, DIET for redressal of her grievance. The Principal, DIET was directed to consider her representation in the light of the judgment of this Court in Isha Tyagi (supra).

The petitioner made a representation before the authority concerned on 25.4.2017, which is on the record, enclosing the judgment in Isha Tyagi (supra).

The fifth respondent by the order impugned dated 8.6.2017 rejected the representation of the petitioner amongst other ground that the petitioner did not seek reservation under the category of dependents of freedom-fighter at the time of submtting her application hence she is not entitled for reservation under the said category.

I have heard Sri Ashok Khare, learned Senior Advocate appearing for the petitioner, learned Standing Counsel and Sri B.P. Singh, learned counsel for the respondent.

Learned counsel for the petitioner submitted that the fifth respondent has not considered the law laid down in Isha Tyagi (supra) and without giving any reason has rejected the claim of the petitioner. He further submits that in Isha Tyagi (supra) a general direction has been issued by the Division Bench hence the petitioner is entitled for the benefit of said judgment. He has also relied on a judgment in the case of Santosh Kumar Upadhyay v. State of U.P. & Ors4.

Sri B.P. Singh, learned counsel for the respondent submitted that since the petitioner did not mention in her application that she is dependent of freedom-fighter and the amending Act has no retrospective effect hence the order passed by the fifth respondent is correct.

I have considered the submissions advanced by learned counsel for the parties and perused the record.

It is a common ground that the petitioner is a granddaughter of a freedom-fighter. The advertisement was issued for appointment to the posts of trainee teachers in the State of U.P. in pursuance of Government Order dated 27.9.2011 whereby a decision was taken for recruitment of more than 72000 trainee teachers in the State. The petitioner applied in pursuance of advertisement issued by the District Basic Education Officer. The selection of trainee teachers was made in terms of the order passed by the National Council for Teacher Education permitting the appointment of candidates possessing B.Ed. degree as a trainee teacher subject to the condition that they shall undergo six months training to make them eligible for appointment. The petitioner having B.Ed. degree and she has also passed UP TET Test (Primary Level) and has secured 98 marks, claimed the reservation under the provisions of the Act, 1993 as a dependent of freedom-fighter but the same was not considered, as she was not covered under the definition of freedom-fighter.

Section 2(b) of the Act, 1993 reads as under:

"2...

(b) "dependent" with reference to a freedom fighter means,---

(i) son and daughter (married or unmarried),

(ii) grandson (son of a son) and [grand daughter (daughter of a son) married or unmarried)], of the freedom-fighter."

On 26.8.2014 a Division Bench of this Court in Isha Tyagi (supra) declared the aforesaid definition as discriminatory and directed the State Government to extend the benefit of the Act, 1993 to the children of daughters of freedom fighters also.

Pursuant thereto the State Government by the U.P. Act No. 6 of 2015, amended the Act, 1993. In prefatory note it was mentioned that the said amendment is being brought in view of the fact that the High Court in Isha Tyagi (supra) has declared the clause (b) of Section 2 of the Act, 1993 unconstitutional. The prefatory note of the U.P. Act No. 6 of 2015 is as follows:

"Prefatory Note--Statement of Objects and Reasons.--The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (U.P. Act No. 4 of 1993) has been enacted to provide for the reservation of posts in favour of physically handicapped, dependents of freedom fighters and ex-servicemen. Clause (b) of Section 2 of the said Act defines the word "dependent". In accordance with the said definition son and daughter (married or unmarried) and grandson grand daughter (son or daughter of a son) (married or unmarried) are the dependents of a freedom fighter. The Hon'ble High Court, Allahabad has in Writ Petition No. 41279/2014, Isha Tyagi v. State of U.P. held in their order dated August 26, 2014 that gender based discrimination is unconstitutional. In the light of the said order, it has been decided to amend the said Act to include the son and daughter of a daughter of a freedom fighter.

The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Bill, 2015 is introduced accordingly."

The amendment of Section 2 of the U.P. Act No. 4 of 1993 is extracted below:

"2. Amendment of Section 2 of U.P. Act No. 4 of 1993.--In Section 2 of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, in clause (b) for sub-clause (ii) the following sub-clause shall be substituted, namely---

"(ii) grand son (son of a son or daughter) and grand daughter (daughter of a son or daughter) (married or unmarried)."

After the aforesaid amendment, the petitioner made an application for the certificate of dependents of freedom fighter. The District Magistrate on 19.6.2015 issued a certificate to her which she has duly submitted much before the counselling which was held on 16.4.2015. The petitioner approached this Court by way of Writ-A No. 62631 of 2014, wherein an interim order was granted on 21.11.2014 directing the respondents to allow the petitioner to appear in ongoing counselling of Trainee Teachers Selection 2011 provisionally. In compliance thereof, the petitioner was permitted to participate in the counselling.

Indisputably, the cut-off marks for the dependents of freedom fighters was 91 and the petitioner has secured 98 marks thus she was eligible for consideration under the 2% quota reserved for the dependents of freedom fighters. Her claim has been rejected by the fifth respondent only on the ground that she did not apply for the benefit under sub-section (b) of Section 2 of the Act, 1993. It is true that when the petitioner had made an application in pursuance of the advertisement which was made in the year 2011, she did not seek the benefit of sub-section (b) of Section 2 of the Act, 1993 but once this Court in the case of Isha Tyagi (supra) interpreted sub-section (b) of Section 2 of the Act, 1993 that the children of daughters of freedom fighters are also entitled for the benefit of reservation. The petitioner became entitled for the benefit of the law laid down by this Court in Isha Tyagi (supra).

It is a well settled law that the judgment of the Court is always retrospective unless the Court declares that the said law shall be operative from future dates. It is trite that the doctrine of prospective overruling is an exception to this principle. The said principle is a now accepted in all Branches of law in America and for the first time in this country it was applied by the Supreme Court in the case of L.C. Golak Nath and others v. State of Punjab and another5. The Supreme Court has laid down that the doctrine of prospective overruling can be applied only by the highest Court of the country i.e. Supreme Court. Relevant part of the judgment in Golak Nath (supra) reads as under:

"(51). As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions: (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by highest court of the country, i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the curts in India; (3) the scope of the retrospective operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."

The same issue again fell for consideration before the Eleven-Judge Bench of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another6, wherein the principle laid down regarding the doctrine of prospective overruling in Golak Nath's case was proved by the Keavananda Bharati's case.

The Court held that the doctrine of prospective overruling is a modern doctrine and is one of the necessary tool for a fast moving society. The said doctrine is invoked by the Supreme Court only in limited cases to avoid reopening of the settled issue and to prevent multiplicity of proceedings. The further object for above applying principle is to avoid uncertainty and avoidable litigation. In the larger public interest sometimes it becomes necessary that by declaring the judgment will operate prospectively, in that event, it is deemed that all actions taken contrary to the declaration of law, prior to the date of declaration are validated.

It is well settled that the law declared by the Court is presumed to be the law at all times. Generally the judgment of the superior courts enunciated that a principle of law is applicable to all cases irrespective of its state of pendency as it is assumed that the law laid down by the Supreme Court and the High Court is the law from inception.

In some later decisions, the Supreme Court held that although the doctrine of prospective overruling can be applied only by the Supreme Court but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India even without applying the doctrine of prospective overruling may grant a limited relief in exercise of their equity jurisdiction to avoid reopening of the settled issue. Reference may be made to the judgments of the Supreme Court in the case of P.V. George and others v. State of Kerala and others7; Harsh Dhingra v. State of Haryana and others8; Managing Director, ECIL, Hyderabad and another v. B. Karunakar and others9; Ashok Kumar Gupta and another v. State of U.P. And others10; Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others11; State of Bihar v. S.A. Hassan and another12; and, P.V. George and others v. State of Kerala and others13.

The aforesaid principles have also been followed by this Court in the case of Gaurav Tripathi v. State of U.P. And others14. Relevant paragraph of the judgment reads as under:

"246. This decision thus shows that the doctrine of prospective overruling is not applicable to the High Court.

*** *** ***

250. This decision thus lays down that the power of prospective over-ruling is vested in the Supreme Court and that too in Constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective over-ruling, indisputably may grant a limited relief in exercise of their equity jurisdiction."

Applying the aforesaid principle in the case at hand it is evident that the law declared by this Court in Isha Tyagi (supra) was declaratory in nature and was not prospective. The Court has found that sub-section (b) of Section 2 was against the constitutional provision and issued the direction to the State to give the benefit of the Act, 1993 to the petitioner therein Isha Tyagi. In the said case Isha Tyagi was granddaughter of the freedom fighter. She was a candidate for entrance to Medical Course, CPMT-2014. The Court found that any discrimination against a daughter would be plainly a discrimination on the ground of gender. Relevant part of the judgment in Isha Tyagi (supra) reads as under:

"8. In the circumstances, we order and direct that the benefit of the horizontal reservation of 2% for descendants of freedom fighters shall extend both to descendants of a freedom fighter tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter. Neither a married daughter nor her children would be disqualified from receiving the benefit of the reservation which is otherwise available to them in their capacity as descendants of a freedom fighter. Whether, in a given case including the present, an applicant is truly a descendant of a freedom fighter is undoubtedly for the authority to verify.

In the present case, the learned counsel appearing for the petitioner has stated that the process of counselling is still going on. In the event that the counselling process is still underway, we direct that the claim of the petitioner shall, subject to due verification as regards its authenticity, be considered under the category of the horizontal reservation of 2% provided for descendants of a freedom fighter."

The conspectus of legal position that emerges from the aforesaid direction is that the judgment of the Court is in rem and not in personam hence the principle laid down in the said case was applicable to all similarly placed persons and it was a declaratory in nature as the Court has interpreted sub-section (b) of Section 2 and framed it contrary to the provisions of the Constitution.

From the nature of the declaration in the said case it is plain and simple that there was no need to make the judgment prospective in nature as the Court has interpreted the statutory provision and there was no need to save any appointment which had already been made.

Learned Standing Counsel has relied on a judgment of the Division Bench in the case of Smt. Mamta Srivastava v. State of U.P. And another15. In the said case the dispute was with regard to the status of the petitioner therein as she was married granddaughter of a freedom fighter. The said judgment was delivered on 15.2.2016 but the judgment in Isha Tyagi (supra) was not brought to the notice of the Division Bench. The case however does not decide any point of law and the decision was rendered in its own facts.

Regard being had to the fact that the State did not challenge the judgment in Isha Tyagi (supra) rather it amended the Act, 1993 by the Amendment of 2015. The amendment was made in terms of declaration and the necessary amendment of sub-section (2) of the Act, 1993 was made including the children of the daugthers of freedome fighters.

Suffice it would be to mention that in prefatory note of the amendment it is recorded that the amendment has been made in the line of law laid down by High Court in Isha Tyagi (supra). The petitioner was permitted to appear in the counselling by this Court vide interim order dated 21.11.2014. The interim order was complied with by the respondents and she was allowed to participate in the counselling hence the fifth respondent is not justified declining to give the benefit of amendment Act to the petitioner on the ground that she had not sought the benefit of sub-section (b) of Section 2. The fifth respondent has failed to consider that the judgment in Isha Tyagi (supra) came on 26.8.2014 hence she became entitled for the benefit of the said judgment after 26.8.2014 and, as mentioned above, the interim order was passed after the judgment of in Isha Tyagi (supra). As also the benefit of the judgment in Isha Tyagi's case should have been extended to the petitioner for the reasons mentioned above. For the said reason the impugned order of the fifth respondent stands vitiated.

Additionally, in her subsequent writ petition16, a clear direction was issued to the fifth respondent to decide the representation of the petitioner in the light of the judgment of this Court in Isha Tyagi (supra). Relevant part of the order in Writ-A No. 24042 of 2015 reads as under:

"In such view of the matter, the present petition stands disposed of with liberty to the petitioner to approach respondent no.4-Principal, District Institute of Education and Training, District Azamgarh to decide her claim in the light of judgement of this Court in the case of Isha Tyagi (supra) provided therein no other legal impediment. For this purpose, petitioner is at liberty to file fresh representation along with certified copy of this order and the concerned authority shall pass appropriate orders preferably within a period of three months from the date of production of certified copy of this order."

In compliance thereof the petitioner had submitted a representation dated 25.4.2017 before the fifth respondent a copy whereof is on the record as annexure-14. Along with her representation she had submitted the judgment in Isha Tyagi (supra) before the fifth respondent. From the order of the fifth respondent it is a manifest that he has not adverted to the judgment in the case of Isha Tyagi. The order of the fifth respondent is a non-speaking order and he has not assigned any reason why the petitioner is not entitled for the benefit of the law laid down in Isha Tyagi's case.

It is a trite law that the law laid down by the High Court is binding on all the authorities / Tribunals/ Courts. The judgment of the Isha Tyagi's case is declaratory in nature and is binding on all the authorities. As mentioned above, the law declared by the High Court is presumed to be the law by all times unless the Court makes the judgment prospective. The Supreme Court in the case of M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta17 has held that the like Article 141 of the Constitution the judgment of the High Court are also binding in the State of all the authortiies.

It is well settled that the law declared by the High Court is binding on all the authorities, like Article 141 of the Constitution. There is no corresponding provision of Article 141 in the Constitution for the High Court but the Supreme Court in M/s East India Commercial Co. Ltd. (supra) has held that the judgments of the High Court are also in same way binding on all the authorities/ tribunals/ courts in the State.

In view of the conspectus of the aforesaid facts and circumstances, I am of the considered view that the impugned order dated 8.6.2017 needs to be set aside. Accordingly, it is set aside. I find that the petitioner is entitled for the benefit of the judgment in Isha Tyagi (supra) as she is granddaughter of a freedomfighter. Accordingly, the matter is remitted to the fifth respondent to pass appropriate order expeditiously, preferably within six weeks from the date of communicatioin of this order in the light of the law laid down by this Court.

The writ petition is, accordingly, allowed.

No order as to costs.

Order Date :- 1.8.2017

SNT/Digamber