Kiran Tripathi vs State Of U.P. And Another
2021 Latest Caselaw 9951 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - A No. - 58362 of 2017
 

 
Petitioner :- Kiran Tripathi
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Anuradha Mishra,Ram Krishna Mishra
 
Counsel for Respondent :- C.S.C.,Aakash Rai,Prakash Chandra Pathak,Rajendra Kumar Singh,Rakesh Kumar Yadav,Shivam Yadav
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Petitioner applied for appointment to the post of Trained Graduate Teacher (TGT) against advertisement no.1 of 2013, published on 29.12.2013 in Hindi daily newspaper 'Amar Ujala'. The advertisement was issued by the second respondent. Petitioner applied against the aforesaid advertisement in the male category on 01.01.2014. It is alleged that petitioner applied for a certificate of Dependant of Freedom Fighter (in short 'DFF') and such certificate was actually issued to her only on 29.12.2014 whereafter it was submitted before the Board vide application dated 10.01.2015. The petitioner was issued an admit card and she participated in the written test conducted on 25.01.2015.

2. The result of TGT written test was ultimately declared on 12.05.2016 in subject code - Hindi in which the petitioner qualified and she was called upon to face the interview held on 01.02.2017. It is averred in the writ petition that at the time of interview petitioner's original mark sheets and certificates including DFF certificate were duly examined and a verification sheet was also prepared. Ultimately, the final result was published on the website of the Board on 18.05.2017 in which petitioner's name did not figure.

3. Petitioner's aggregate marks in the selection is 396.36 but she has not been selected although candidates with marks upto 320 have been selected by the Board in the DFF category. A grievance in that regard was accordingly raised by the petitioner before the authorities in terms of para 19 of the advertisement but when no decision was taken the petitioner came to this Court by filing Writ Petition No.50054 of 2017. This writ petition was withdrawn vide following orders passed on 22.11.2017:-

"Learned counsel for the respondent has received instructions vide communication dated 14 November 2017.

It is sought to be urged that in the form filled up by the petitioner for T.G.T. (Hindi), column 10 has been left blank, therefore, it is urged that case of the petitioner was not considered under the Ex-service men/Freedom Fighter quota.

At this stage, petitioner seeks liberty to withdraw the petition with liberty to file fresh petition bringing on record the details of the selected candidates who are likely to be affected.

The writ petition is, accordingly, dismissed as withdrawn with the aforesaid liberty."

4. It is thereafter that petitioner has filed the present petition and by moving an application private respondent nos.3 to 13 have been impleaded, who allegedly have secured lower marks than the petitioner in DFF category and while private respondents have been selected the petitioner has been left out. The present writ petition accordingly has been filed to quash the select list insofar as persons with lower merit have been selected in the category of DFF and for a direction to consider petitioner's representation, in that regard.

5. A counter affidavit has been filed on behalf of the Board stating that petitioner had not claimed benefit of reservation meant for DFF in her application form dated 01.01.2014, copy of which is Annexure-1 to the counter affidavit. It is stated that private respondents have applied in the DFF category, and therefore, the Board has rightly considered their candidature in the concerned category. Since petitioner had not applied, therefore, she has rightly been denied consideration as DFF.

6. A counter affidavit has also been filed by the private respondents adopting the stand taken by the Board. It is stated that since petitioner had applied in the unreserved category and benefit of reservation meant for DFF was not claimed, as such petitioner cannot raise a grievance now.

7. Rejoinder affidavits have also been filed to the counter affidavits filed by the Board as well as private respondents.

8. A supplementary affidavit has been filed by the petitioner in which reliance is placed upon a Division Bench judgement of this Court in the case of Isha Tyagi vs. State of U.P. and others, 2014 (9) ADJ 331 (DB); Santosh Kumar Upadhyaya vs. State of U.P. and others being Writ Petition No.370 of 2016, decided on 14.01.2016, and Monika vs. State of U.P. and others being Writ Petition No.33578 of 2017, decided on 01.08.2017. With reference to the above judgements it is urged that this Court in the Case of Isha Tyagi (supra) has allowed benefit of horizontal reservation of 2% to DFF tracing their lineage through a son or daughter, irrespective of the marital status of the daughter. A married daughter of the Freedom Fighter and her children have also been held entitled to the benefit of 2% reservation. It is alleged that this judgement was delivered on 26.08.2014, and therefore, the petitioner was entitled to the benefit of such reservation since written exam was conducted after it. The subsequent judgement of this Court in the case of Monika (supra) has also been relied upon for such purpose.

9. On behalf of the respondents it is urged that petitioner since had not applied in the category of DFF, therefore, subsequent application moved by her for grant of reservation as DFF cannot be entertained and the petitioner's plea for grant of 2% reservation has no basis.

10. I have heard Sri V. K. Singh, learned Senior Counsel assisted by Sri Ram Krishna Mishra for the petitioner, Sri Akash Rai, learned counsel for the respondent Board, Sri P. C. Pathak, learned counsel for the private respondents and learned Standing Counsel for respondent no.2 and have perused the materials brought on record.

11. It is admitted on record that petitioner had not claimed reservation meant for DFF in her original application form submitted on 01.01.2014. The DFF certificate appears to have been issued to the petitioner on 29.12.2014 on the basis of the judgement rendered by this Court in the case of Isha Tyagi (supra), which is on record. As per this certificate petitioner is the grand daughter of late Krishna Dev, who was a Freedom Fighter. Reservation for DFF is admissible in accordance with the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-servicemen) Act, 1993 (hereinafter referred to as 'Act of 1993'). Section 2(b) of the Act of 1993 defines dependant in following terms:-

"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."

12. The Division Bench of this Court in the case of Isha Tyagi (supra) held the aforesaid definition of dependant to be discriminatory and directed the State Government to extend benefit of reservation under the Act of 1993 to the daughter of Freedom Fighter and her children also. The judgement in the case of Isha Tyagi (supra) has been rendered on 26.08.2014. The State Government has complied with the above directions and amended the definition of 'dependant' in the Act of 1993 vide U.P. Act No.6 of 2015, which is reproduced hereinafter:-

"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)."

13. The writ petitioner's mother is the daughter of Freedom Fighter late Krishna Dev. The certificate of DFF, however, has been issued to petitioner only in compliance of the directions issued by this Court in the case of Isha Tyagi (supra) after the last date fixed for applying against the advertisement and before the holding of written examination. The certificate of DFF has been sent to the Board by registered post on 10.01.2015.

14. Learned counsel for the petitioner contends that benefit of reservation as DFF would be admissible to the writ petitioner since such benefit had been claimed by her prior to conduct of written examination itself.

15. This Court in the case of Santosh Kumar Upadhyaya (supra) examined the previous judgement in Isha Tyagi (supra) to hold it to be declaratory in nature and all authorities were obliged to comply with it. The Court also observed that relevant date for applicability of the Act of 1993 would be the date of holding written examination. Following observations made in the case of Santosh Kumar Upadhyaya (supra) are relevant for the present controversy and are extracted hereinafter:-

"At this juncture we also proceed to take note of the judgment of the Apex Court in the case of U.P. Public Service Commission vs Satya Narayan Sheohare & Ors, 2009 (5) SCC 473, wherein the writ petitioners were general category candidates when recruitment notification dated 4.3.2000 was issued. Subsequent to the same, the said general category candidates became OBC candidates, when the act was amended on 7.7.2000 i.e. before commencement of written test on 4.8.2000, in the said case a Division Bench of this Court in Writ Petition No. 28193 of 2000, Amrita Singh Vs. State of U.P., decided on 7.5.2001 gave benefit of reservation. Apex Court in the said case held that as the process of selection was deemed to have been initiated when the written test was started and as the Schedule-I to the Act was amended prior to the commencement of written test, the writ petitioners should be treated as OBC candidates, therein also OBC status was accorded after last cut of date and in peculiar facts of the case as they were transitional provisions, benefit of the same has been extended.

Consequently, in the present case also, keeping in view the peculiar facts of case as is clearly reflected here that a declaration has been made by this Court on 26.8.2014 and by ignoring the same advertisement in question has been issued and, thereafter, amendment in question has been made that has been held to be clarificatory in nature, then even if that at the point of time when preliminary examination has been held, petitioner has proceeded to fill up the form as general category candidate as at the said point of time even though judgment in the case of Isha Tyagi (supra) has been there, respective certificates were not being issued to the incumbents by the authorities concerned and certificates in question have been issued only after amending act has been introduced, in view of this, to deny the benefit of being Descendant of Freedom Fighters having his/her lineage through married daughter cannot be approved of by us.

Writ petition is allowed, accordingly. Respondents are directed to treat the candidature of petitioner under the category of "Dependant of Freedom Fighter" subject to due verification as regards its authenticity and his result be also declared, accordingly."

16. The Division Bench in the case of Santosh Kumar Upadhyaya (supra) in arriving at aforesaid conclusion relied upon the Supreme Court judgement in the case of U.P. Public Service Commission vs. Satya Narayan Sheohare, (2009) 5 SCC 473 to observe as under:-

"In normal course of business this fact cannot be disputed that the terms and conditions of the advertisement cannot be permitted to be altered and the said terms and conditions have a mandatory characteristic. The situation, that is so emerging in the present case, is that a candidate cannot be asked to perform and discharge impossible task as here in spite of the fact that there has been a declaration by this Court clearly providing therein to extend the benefit of horizontal reservation of 2% for descendants of freedom fighters tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter, in spite of said binding precedent at no point of time any attempt or endeavour was made by the State to implement the said judgment and bring the advertisement in question in line with the said judgment in question. The advertisement in question ought to have contained the reference of the judgment of this Court and as far as State is concerned, State Government is conceding to the situation that there has been a judgment of this Court and that they have proceeded to amend the definition in question. We have already proceeded to take view that the judgment of this Court is declaratory in nature and the amending act in question has to be accepted as clarificatory in nature, in such a situation and in this background for the fault of the State for not ensuring compliance of the judgment of this Court a candidate cannot be put to disadvantageous situation, inasmuch as, at the relevant point of time as definition in question has not been amended by means of amending act the authorities on the spot were not issuing the certificate to the incumbents who have lineage through married daughters of freedom fighters of being descendants of freedom fighters and, in such a situation, once act in question has been amended and, thereafter, certificate has been issued and based on the same petitioner has filled up the form of the mains examination under the category of Descendant of Freedom Fighter, then it may be true that there was a last cut of date but such a situation has to be dealt with in just and equitable manner."

17. In Monika (supra) also this Court held that the declaratory judgement in the case of Isha Tyagi (supra) is in rem and not in personam, and therefore, the judgement in Isha Tyagi (supra) would be applicable in cases where advertisement was issued prior to 26.08.2014 but the written examination was conducted subsequently.

18. The Act of 1993 being a special Act would have to prevail in view of the law declared by this Court in the case of Isha Tyagi (supra). The Board, therefore, has erred in denying benefit of reservation as DFF to the writ petitioner. Since the petitioner has secured marks above the marks secured by the selected candidates, who are impleaded in this petition as respondent nos.3 to 13, therefore, she is entitled to be selected for appointment. The contrary view taken by the Board cannot be sustained.

19. Writ petition is, consequently, allowed. At this stage, it would be appropriate to examine as to what relief is liable to be granted to the petitioner in the facts of the present case. Admittedly, the private respondents have already been selected in the year 2017 and are working for more than four years without any complaint. There is no misrepresentation or fraud on their part in securing appointment. It would thus not be appropriate to dislodge any of the selected candidates after such long lapse of time. Petitioner, however, having secured higher marks than the private respondents is entitled to selection and appointment by the Board in accordance with law. A mandamus is, therefore, issued to the Board to consider petitioner's claim for appointment in any other institution, within a period of three months from today, keeping in view of rule 13(5) of the U.P. Secondary Education Services Selection Board Rules, 1998 and the law laid down by the Supreme Court in the case of U.P. Secondary Education Service Selection Board vs. State of U.P. and others, (2018) 13 SCC 720.

Order Date :- 10.08.2021

Ashok Kr.