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2016 DIGILAW 198 (ALL)

SANTOSH KUMAR UPADHYAY v. STATE OF U. P.

2016-01-14

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT By the Court.—Santosh Kumar Upadhyay is before this Court for following reliefs; I. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to provide the benefit of two percent (2%) reservation quota and weightage of the dependants of the freedom fighter to the petitioner in the selection procedure of U.P. Combined State/Upper Subordinate Examination (General/Special Recruitment) 2015 so that justice be done. II. Issue a writ, order or direction of in the nature of mandamus commanding and directing the respondent concerned to decide the representation/application dated 30.5.2015 pending till now before the respondent No. 2, within a span of limited time period as prescribed and fixed by this Hon’ble Court. III. Issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. IV. Award the cost of writ petition in favour of the petitioner. 2. Brief background of the case, as is emanating in the present case, is that petitioner claims that he is grandson (daughter’s son) of the freedom fighter Late Sri Badri Narayan Upadhyaya s/o Late Dukharan Upadhyaya r/o Village Kodha, Pargana Ghisua, Tehsil Machlishahar, District Jaunpur and petitioner has come up with the case that U.P. Public Service Commission advertised for the recruitment of the vacancy of U.P. Combined State/Upper Subordinate Examination (General/Special Recruitment) 2015 and in the said direction the advertisement in question has been published on 28.1.2015. The last date of submission of the application was 28.2.2015. Petitioner applied for consideration of his candidature under the general category. The aforesaid recruitment process has to be completed in three tier system (i) preliminary examination (ii) mains examination and (iii) interview. Petitioner has been allotted roll No. 046472 and he was issued admit card and he undertook the preliminary examination and by his sheer labour qualified the preliminary examination. Petitioner, at the point of time, after being declared as successful in preliminary examination filled up the form to make mains examination and at the said point of time petitioner claims benefit of being dependant of freedom fighter. Petitioner, at the point of time, after being declared as successful in preliminary examination filled up the form to make mains examination and at the said point of time petitioner claims benefit of being dependant of freedom fighter. Thereafter, petitioner has undertaken the mains examination and has cleared the same and, thereafter, petitioner has been asked to face the interview by letter dated 7.12.2015, which has been scheduled to be held on 7.1.2016 and prior to it on 4.1.2016 present writ petition in question has been filed and it has been taken up on 7.1.2016 and therein prayer of petitioner has been that he should be treated as “Dependant of Freedom Fighter” by virtue of being son of daughter of freedom fighter Late Sri Badri Narayan Upadhyaya in pursuance of certificate dated 21.5.2015 issued by the competent authority and similar treatment, as has been extended to Markandey Pratap Narayan Singh, be also extended to him. 3. On the presentation of writ petition in question we asked the counsel representing the Commission in question as well as learned Standing Counsel to obtain necessary instructions in the matter and pursuant thereto requisite instructions have been obtained and the instructions in question are to the effect that as the date of submission of application was 28.2.2015 and the gazette notification in respect to the amendment in U.P. Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) Act, 1993, was made on 7.4.2015 and the certificate issued to the petitioner in respect to the dependant of a freedom fighter was issued on 21.4.2015 in the light of the aforesaid amendment, once the process of examination is on then midway petitioner cannot be permitted to change his category, as is being sought to be done in the present case and, accordingly, selection has to be made on the terms and conditions of the advertisement and, as such, no relief or reprieve should be given to the petitioner. 4. State, on the other hand, in the present case, is not disputing the judgment of this Court in the case of Isha Tyagi v. State of U.P. and others, 2014(9) ADJ 331 (DB) and the issuance of notification, so issued, thereafter, on the basis of instructions in question, present petition has been taken up for final hearing and disposal. 5. State, on the other hand, in the present case, is not disputing the judgment of this Court in the case of Isha Tyagi v. State of U.P. and others, 2014(9) ADJ 331 (DB) and the issuance of notification, so issued, thereafter, on the basis of instructions in question, present petition has been taken up for final hearing and disposal. 5. Sri Rakesh Kumar Tiwari, Advocate, appearing for the petitioner, submitted with vehemence that petitioner cannot be discriminated and in all eventuality petitioner is eligible for being extended the benefit of 2% reservation quota and the weightage of being dependant of freedom fighter in selection process of U.P. Combined State/Upper Subordinate Examination (General/Special Recruitment) 2015, so that justice be done and discrimination be not perpetuated vis.a.vis. dependants of freedom fighter amongst themselves based on gender. 6. Countering the said submission Sri Nisheeth Yadav, Advocate, contended that petitioner has proceeded to apply for consideration of his candidature as a general category candidate and, in view of this, petitioner cannot be permitted to change his category after the last date mentioned in the advertisement in question has already been over and selection process is on and, in view of this, once instructions in question are binding, this Court, in case, allows any relief, same would tantamount to altering the terms and conditions of the advertisement in question, whereas no change is permissible after the cut of date and the judgment relied upon is not a judgment in rem, as such, writ petition is liable to be dismissed. 7. Learned Standing Counsel, on the other hand, has accepted the situation that there is a judgment holding the field of gender discrimination and remedial measures have already been undertaken by the State Government by making necessary amendments in the statute. 8. 7. Learned Standing Counsel, on the other hand, has accepted the situation that there is a judgment holding the field of gender discrimination and remedial measures have already been undertaken by the State Government by making necessary amendments in the statute. 8. After respective arguments have been advanced the factual situation that is so emerging that the State Government has taken a policy decision to grant a horizontal reservation of 2% to the descendants of freedom fighters and, at the point of time, when such policy decision has been taken the State Government in its wisdom has qualified the condition of eligibility by stipulating that a son or a daughter would be entitled to the benefit of the reservation as well as grandson (son of the son) and unmarried granddaughter (daughter of son of freedom fighter) would be inclusive in the definition of descendants of freedom fighters. While defining the descendants of freedom fighters unmarried daughter was entitled to the benefit of 2% horizontal reservation and married daughter and her children were not at all entitled to receive the same benefit. In the said direction the challenge has been made before this Court in Isha Tyagi v. State of U.P. and others, 2014(9) ADJ 331 (DB), wherein a granddaughter of freedom fighter of Tehsil-Deoband, District Saharanpur, questioned the validity of the said exclusion by contending that it has the impact of gender discrimination and this Court entertained such a plea that exclusion of a granddaughter is plainly an act of hostile discrimination and finding favour with the said plea, proceeded to allow the writ petition in question in following terms; “The State Government has taken a policy decision to grant a horizontal reservation of 2% to the descendants of freedom fighters. While doing so, the State Government has qualified the condition of eligibility by stipulating that a son or a daughter would be entitled to the benefit of the reservation. However, it has been stated in the relevant condition that the law department had opined that this benefit can be extended only to an unmarried daughter of a freedom fighter. Consequently, whereas the son’s son would be eligible to apply for admission, the children of a daughter stand excluded. Exclusion of a grand daughter is plainly an act of hostile discrimination which is violative of the fundamental right guaranteed under Articles 14 and 15 of the Constitution. Consequently, whereas the son’s son would be eligible to apply for admission, the children of a daughter stand excluded. Exclusion of a grand daughter is plainly an act of hostile discrimination which is violative of the fundamental right guaranteed under Articles 14 and 15 of the Constitution. The condition which has been imposed by the State does not prescribe financial dependence. In fact, the clarification is to the effect that it is not necessary that the son of a freedom fighter should be financially dependant upon him. The basis and object of the horizontal reservation of 2% is to recognise the seminal role in the freedom struggle played by freedom fighters. It is in recognition of their contribution to the freedom struggle that a benefit of reservation is extended to descendants of freedom fighters. This being the rationale, there is no reason or justification to exclude a married daughter and consequently the children of a married daughter. Once a decision has been taken to extend the benefit of horizontal reservation to descendants of freedom fighters, whether the descendant is a son or a daughter should make no difference whatsoever. In fact, any discrimination against a daughter would be plainly a discrimination on grounds of gender. The guarantee under Article 15 of the Constitution is broad enough to encompass gender discrimination and any discrimination on grounds of gender fundamentally disregards the right to equality, which the Constitution guarantees. In National Legal Services Authority v. Union of India1, the Supreme Court held that any discrimination on the basis of gender identity would be contrary to Articles 14, 15 and 21 of the Constitution: “82. Article 14 has used the expression “person” and Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human beings. ...Gender identity as already indicated forms the core of one’s personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity. ... 83. All these expressions, which are “gender neutral” evidently refer to human beings. ...Gender identity as already indicated forms the core of one’s personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity. ... 83. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, ...............” It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which this social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter. The progeny of the children of a freedom fighter cannot be be excluded on the grounds of gender. Grandchildren, irrespective of gender, must be treated on an equal footing. Whether grandchildren should at all be entitled to the benefit of a welfare scheme is a matter of policy for the State to decide. However, what is clearly not open to the State is to confine the benefit to grandchildren of a particular category, based on the gender of the parent or the gender of the child. Marriage does not have and should not have a proximate nexus with identity. However, what is clearly not open to the State is to confine the benefit to grandchildren of a particular category, based on the gender of the parent or the gender of the child. Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasise that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status. Consequently, in the present case, we are of the view that the opinion of the law department of the State, which forms the basis of the condition which is in question, is just not sustainable and is fundamentally contrary to basic constitutional norms. 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 writ petition is, accordingly, allowed in the aforesaid terms. There shall be no order as to costs.” 9. The writ petition is, accordingly, allowed in the aforesaid terms. There shall be no order as to costs.” 9. The said judgment in question clearly proceeds to make a declaration that the benefits of 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. However, it was left open as to 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. The judgment in question thus on its face value is of declaratory nature wherein a declaration has been made by this Court that the benefits of 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. The said judgment has been permitted to attain finality and even in principle amendment has been introduced, which is as follows : “No. 453(2)/LXXIX-V-1-15-1(ka)-14-2015 Dated Lucknow, April 7, 2015 In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Lok Seva (Sharirik Roop se Viklang, Swatantrata Sangram Senaniyon Ke Ashrit Aur Bhootpurva Saninikon Ke Liye Arakshan) (Sansodhan) Adhiniyam, 2015 (Uttar Pradesh Adhiniyam Sankhya 6 of 2015) as passed by the Uttar Pradesh Legislature and assented to by the Governor on April 6, 2015. The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) (Amendment) Act, 2015 (U.P. Act No. 6 of 2015) [As passed by the Uttar Pradesh Legislature] AN ACT further to amend the U.P. Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) Act, 1993. The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) (Amendment) Act, 2015 (U.P. Act No. 6 of 2015) [As passed by the Uttar Pradesh Legislature] AN ACT further to amend the U.P. Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) Act, 1993. IT IS HEREBY enacted in the Sixty-sixth year of the Republic of India as follows: 1. This Act may be called the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) (Amendment) Act, 2015. 2. In Section 2 of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) Act, 1993, in Section 2 of U.P. Act No. 4 of 1993 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).” 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, dependants of freedom fighters and ex-servicemen. Clause (b) of Section 2 of the said Act defines the word “dependant”. In accordance with the said definition son and daughter (married or unmarried) and grand son and grand daughter (son or daughter of a son) (married or unmarried) are the dependants 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.” 10. 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.” 10. Much emphasis is being laid in the present case that pursuant to the judgment of this Court amendment has been introduced on 7.4.2015 and pursuant thereto certificate in question has been issued in favour of petitioner of being descendant of freedom fighter and the provisions of U.P. Public Services (Reservation for Physically Handicapped, Dependant of Freedom Fighters and Ex Service Man) (Amendment) Act, 2015, U.P. Act No. 6 of 2015, has been enforced w.e.f. 7.4.2015 and, as such, amending act would apply prospectively and, accordingly, benefit claimed by the petitioner cannot be accorded and the judgment in question is not a judgment “in rem” rather judgment is “in personam” 11. The judgment of this Court in the case of Isha Tyagi (supra) clarifies the position that there is hostile gender discrimination when married daughter and her children have been disqualified from receiving the benefit of reservation. In this backdrop arguments advanced by U.P. Public Service Commission that it is a case of prospective ruling and further the amendment in question would be enforceable from the date it has been brought in the statute book cannot be accepted as gender discrimination has been there since the inception of said provision and this Court has proceeded to clarify the legal position vide order dated 26.8.2014 clearly mentioning therein the benefits of 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. In the said case the process of counselling was on, this Court directed consideration of candidature of the said candidate under the category of horizontal reservation of 2% provided for descendants of freedom fighters as discrimination has to be remedied and not to be perpetuated. In the said case the process of counselling was on, this Court directed consideration of candidature of the said candidate under the category of horizontal reservation of 2% provided for descendants of freedom fighters as discrimination has to be remedied and not to be perpetuated. The judgment of this Court in the case of Isha Tyagi (supra) has to be accepted as of declaratory nature and it has to be accepted that right from the inception when policy decision has been taken to grant horizontal reservation of 2% to the descendants of freedom fighters, gender discrimination persisted whereas marital status of daughter ought not to have made any difference. The said judgment in question declares the correct law and once the judgment in question nowhere proceeds to mention that it would be applied prospectively then it has to be accepted that the judgment in question clarifies the legal position and is declaratory in nature. The amending act in question i.e. U.P. Act No. 6 of 2015 cannot be accepted as prospective in nature, inasmuch as, in the facts of the case, it has to be held to be correction of an obvious drafting error based on gender discrimination. The said amending act brings the granddaughter (daughter of a son) (married or unmarried) within the fold of descendant of freedom fighter. The said amending act is not at all prospective in nature as even without amending such provision, this Court has already clarified the legal position and the said provision would have to be read and interpreted, as has been sought to be corrected by the amendment. The judgment in the case of Isha Tyagi (supra) has to be accepted as declaratory and amendment in question is nothing but clarificatory in nature, that clarifies the situation as it ought to have been right from the inception of provision. 12. The judgment in the case of Isha Tyagi (supra) has to be accepted as declaratory and amendment in question is nothing but clarificatory in nature, that clarifies the situation as it ought to have been right from the inception of provision. 12. Consequently, in the facts of the case, once this Court has already clarified the legal position on 26.8.2014 in the case of Isha Tyagi (supra) clearly providing therein that the benefits of 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, then, thereafter, as the judgment in question was judgment in rem, the declaration made therein would bind all the parties who were before the Court and even who were not before the Court. To accept the preposition that the said judgment is in personam is too far fetched, as here the said judgment has been delivered after hearing the State of U.P. and State of U.P. has been a party therein, then each and every advertisement issued, thereafter, ought to have been issued by taking note of that judgment. U.P. Public Service Commission is a State agency authorised to conduct Civil Services Examination for entry level appointments to the various civil services of Uttar Pradesh. The agency’s charter is granted by the Constitution of India. Articles 315 to 323 of Part XIV of Constitution, titled services under the Union and the States,,provide for Public Service Commission for the Union and for each State. U.P. Public Service Commission cannot say that as U.P. Public Service Commission was not a party in the case of Isha Tyagi (supra), said judgment is not binding upon them. 13. Here accepted position is that the advertisement in question, that has been so made, is dated 28.1.2015 and last date of submission of applications was 28.2.2015 and this much is accepted position that by the said time though judgment has been delivered by this Court but the authorities concerned on the spot were not issuing certificate in line with the aforementioned judgment and it was only when the amending act has been issued the certificate in question has been issued by the authorities concerned. Here, this much is accepted position that the last date of submission of application was 28.2.2015 and at the said point of time certificate in question was not being issued by the State respondents in line with the judgment of this Court, petitioner proceeded to apply for consideration of his candidature as general category candidate and, thereafter, amending act has been introduced and in consonance with the same certificate has been issued in favour of petitioner of being descendant of a freedom fighter and petitioner in his turn, at the point of time, when he has proceeded to fill up the form of mains examination, this fact is accepted that he has proceeded to claim the benefit of descendant of freedom fighter and petitioner has also undertaken the mains examination in question and has qualified the same. 14. 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 inspite 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. 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. 15. 15. We at this juncture would also make a mention that in identical set of circumstances faced with identical situation wherein U.P. Public Service Commission was a party, as State has not at all been resisting the prayer, this Court in Writ Petition No. 24988 of 2015 (Markandey Pratap Narayan Singh v. State of U.P. and others), allowed the writ petition on 1.5.2015 by directing the Secretary, U.P. Public Service Commission as follows; “A bare perusal of the aforementioned judgment and order would go to show that the law on the subject has been clarified that 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 and in the said case this Court proceeded to mention that as the process of counseling is still ongoing, the claim of 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. Once such has been the verdict of this Court and the said verdict had attained the finality then in such a situation merely on the ground that in preliminary examination no such declaration has been made, cannot be a ground to non-suit the candidature of petitioner under the aforementioned category of ‘Dependent of Freedom Fighter’. Consequently, in the facts of the case, the order dated 18 April 2015 passed by the Secretary, Public Service Commission, U.P. at Allahabad is not being approved and same is hereby quashed and set-aside. The candidature of petitioner be considered under the category of ‘Dependent of Freedom Fighter’ subject to due verification as regards its authenticity. Writ petition is allowed, accordingly. No order as to costs.” 16. We posed specific question to the counsel appearing for U.P. Public Service Commission as to whether the order dated 1.5.2015 has been subjected to challenge before the Apex Court and the answer has been in ‘No’. State is not at all resisting the request of petitioner. Writ petition is allowed, accordingly. No order as to costs.” 16. We posed specific question to the counsel appearing for U.P. Public Service Commission as to whether the order dated 1.5.2015 has been subjected to challenge before the Apex Court and the answer has been in ‘No’. State is not at all resisting the request of petitioner. We have already taken the view that the judgment in the case of Isha Tyagi (supra) is declaratory in nature to the effect that descendants of freedom fighters would get the benefit of horizontal reservation of 2% tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter. Once such is the factual situation that U.P. Public Service Commission has acquiesced to the order dated 1.5.2015 and has not questioned the validity of the aforementioned order, and State is not resisting the request of petitioner, then there is no reason or occasion for us to take a different or contrary view, as has been expressed by this Court in the case of Isha Tyagi (supra), Markandey Pratap Narayan Singh (supra). 17. 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 v. Satya Narayan Sheohare and others, 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 v. 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. 18. 18. 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. 19. 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. ———————