Allahabad High Court
State Of U.P. And Another vs Manish Kumar Gupta And Another on 4 August, 2017
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10 A.F.R.
Case :- SPECIAL APPEAL No. - 536 of 2016
Appellant :- State Of U.P. And Another
Respondent :- Manish Kumar Gupta And Another
Counsel for Appellant :- Piyush Shukla
Counsel for Respondent :- Narendra Pratap Singh
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Heard learned counsel for the parties.
This intra Court appeal is directed against the judgment and order of the learned Single Judge dated 28.3.2016, whereunder, a direction has been issued for treating the writ petitioner within the category of dependent of freedom fighters, subject to verification of the correctness or otherwise of the same and to declare his result within two months for the purposes of selection on the post of Sub-Inspector in U.P. Police Service. The advertisement in question had been issued on 19.5.2011.
Standing Counsel on behalf of the appellant contended before us that the judgment in the case of Isha Tyagi Vs. State of U.P. and Ors. which provides for the benefit of dependent of freedom fighters being extended to sons and daughters of married daughters would be prospective in nature. The said judgment cannot be applied in respect of the selections which had been completed prior to the date of said judgment. In the alternative, it is submitted if the judgment in the case of Isha Tyagi (supra) is applied to selection which has already been completed then the entire exercise of permitting all such applications who were within the category of freedom fighters as defined in the case of Isha Tyagi i.e.the sons and daughters of married daughters had to be treated at par and their claim is required to be considered within the horizontal category.
Merely because a particular petitioner has chosen to approach this Court. There cannot be a selective direction to provide for horizontal reservation in favour of dependent of freedom fighters in respect of sons of daughters and married daughters of the freedom fighters, inasmuch as the same would have the effect of depriving, similarly situate other persons of their right of consideration under Article 14 of the Constitution of India. It is submitted that the learned Single Judge has failed to appreciate the aforesaid aspect of the matter and the judgment is unsustainable.
Learned counsel for the State informs the Court, the process of selection in terms of the advertisement in question had been completed prior to the date of the judgment i.e. 26.8.2014. Writ petition was filed in the year 2015. The writ Court could not have directed vide order dated 28.3.2016 for consideration of the claim of the writ petitioner within the category of dependent of freedom fighters.
It is admitted position that in the form submitted by the petitioner as well as in the O.M.R. Sheet, he had left colours pertaining to dependent of freedom fighter blanks. He was considered within the reserved category for which he had applied.
We have heard the learned counsel for the parties and examined the present appeal.
The judgment of the High Court in the case of Isha Tyagi (supra) will have no application in the facts of this case inasmuch as the said judgment cannot be applied to reopen the selections which had already been completed prior to the date of the judgment. Specifically, in the circumstance, when the advertisement/ brochure published for the purpose did not extend, the benefit of horizontal reservation in favour of the dependents of freedom fighters to the sons and daughters of married daughters of the freedom fighters and the same was not challenged. A chaos would be created and closed chapter would be required to be reopened, if appointments are directed to be made now.
Counsel for the State points out that if the writ petitioner had any claim for being considered within the category of dependent of freedom fighters, he should have applied in terms of advertisement with that categories in claim was not considered under said category he should have taken recourse to such proceedings as would be maintainable. If the petitioner has chosen to sleep over his rights for whatever reason it may be or he was watching the proceeding from the fence no benefit can be provided to him. Reference is made to the law laid down by the Apex Court in the case U.P. Jal Nigam & Ors Vs. Narinder Kumar Agarwal [1996] INSC 162.
In the facts of this case selections had been completed prior to 26.8.2014. Petitioner cannot be granted any relief in view of the judgment of the Apex Court in the case of U.P. Zal Nigam (supra).
We are of the considered opinion that the learned Single Judge was not justified in directing the State to offer benefit of horizontal reservation to the writ petitioner, after the selection process had already been completed and the petitioner had not chosen to approach the Court at the appropriate time.
We are also in agreement with the learned counsel for the State on the issue that if benefit of reservation to sons and daughters of married daughters of freedom fighters is to be extended in the facts of the case then such benefit must be provided to all such applicants falling within the same category in respect of the same selection even if they had not applied within the said category in that circumstance fresh advertisement would be required to be made, informing all the applicants of the said right. There cannot be any selective direction for benefit of reservation of freedom fighters being confirmed in favour of particular petitioner only.
In view of the aforesaid, the judgment and order of the learned Single Judge dated 28.3.2016 could be legally sustained and is hereby set aside.
This Special Appeal is allowed.
Order Date :- 4.8.2017
Akbar
