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2020 DIGILAW 503 (ALL)

Heena Bisht v. State of U. P.

2020-02-14

PIYUSH AGRAWAL

body2020
JUDGMENT : 1. This writ petition has been filed, inter alia, for the following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari to quash the order of delisting as informed by the respondent vide the information letter dated 19.08.2019 and 21.08.2019 uploaded on the jansunvai portal. (ii) Issue a writ, order or direction, in the nature of mandamus commanding the respondent no. 2 to accept her freedom fighters certificate issued in favour of her grandfather and allow her to continue and complete her training for the post of the U.P. Constable (Civil). (iii) Issue a writ, order or direction, in the nature of mandamus commanding the responded to decide the application/representation dated 05.08.2019 and 27.05.2019, 29.05.2019 and allowed her to complete her training and take joining as constable.” 2. Heard Shri Suresh Kumar Maurya, learned counsel for the petitioner and Shri Vineet Pandey, learned Chief Standing Counsel assisted by Dr. Amarnath Singh, learned Standing Counsel and Shri Sharad Chandra Upadhyaya, learned Brief Holder for the State – respondents. 3. The brief facts of the case are that the Uttar Pradesh Police Recruitment & Promotion Board (hereinafter referred to as, ‘the Board’) issued an advertisement bearing Adv. No. PRPB: ONE – 1 (112)2017 on 14.01.2018 for the direct recruitment of Constable in Civil Police and Constable in PAC. In the said advertisement, the total vacancy for the post of Constable in Civil Police & PAC was 41520 posts, out of which 23520 posts were reserved for Constable in Civil Police and 18000 posts were reserved for Constable in PAC. Out of 23520 posts for Constable in Civil Police, 11761 posts were reserved for unreserved category, 6360 posts were reserved for OBC, 4939 posts were reserved for SC category and 470 posts were reserved for ST category. The minimum qualification prescribed for the aforesaid post was Intermediate or equivalent approved from the Government. The advertisement further provided 2% horizontal reservation for dependent of freedom fighter and 20% for the women candidates. It was further provided in the advertisement that the reservation would be applicable as per the Government Orders issued by the Karmik Vibhag from time to time. The minimum age for the women candidate was 18 years and maximum age was 25 years from 01.07.2018. 4. It was further provided in the advertisement that the reservation would be applicable as per the Government Orders issued by the Karmik Vibhag from time to time. The minimum age for the women candidate was 18 years and maximum age was 25 years from 01.07.2018. 4. The petitioner applied for the post of Constable in Civil Police and submitted online application form after getting registered on the website of the Board as per the advertisement. Thereafter, the Board issued an admit card to the petitioner for appearing in the written examination on 19.06.2018. Pursuant thereto, the petitioner appeared in the written examination and qualified. Thereafter, the petitioner was called for document verification and physical standard test by the Board fixing 09.12.2018. On 11.12.2018, the petitioner was sent for physical standard test and she qualified. Pursuant to the physical standard test, the petitioner was sent for medical test on 23.04.2019, in which she succeeded and secured place in JTC Meerut Merit List and the petitioner was allotted the District – Bareilly, where the training of the petitioner was started from 12.05.2019. 5. It is averred that during training, the files of all successful candidates were received in the Office of the training center at Bareilly, except the petitioner’s file. On enquiry, the petitioner came to know that she has to go back to Meerut during training session for document and in absence of the same, the Department at Bareilly will not permit her to complete her training for the post in question. 6. It is further averred that after running from pillar to post to know the reason for not sending her file to the training center at Bareilly, it transpired that the certificate of dependent of freedom fighter was issued from the State of Uttarakhand, whereas, it should have been issued from the State of Uttar Pradesh and therefore, her file was not sent to Bareilly. Hence, the present writ petition. 7. Learned counsel for the petitioner submits that the petitioner is dependent of freedom fighter and as such, has rightly claimed the reservation under the category of “dependent of freedom fighter” and the same cannot be denied merely because the certificate has been issued from the authority of Uttarakhand. 8. He further submits that the State of Uttar Pradesh was reorganized with effect from 09.11.2000 by coming into effect the Uttar Pradesh Reorganization Act, 2000. 8. He further submits that the State of Uttar Pradesh was reorganized with effect from 09.11.2000 by coming into effect the Uttar Pradesh Reorganization Act, 2000. Prior to the said Act, the Uttarakhand was the part of the State of Uttar Pradesh and therefore, the benefit of dependent of freedom cannot be denied to her. He further submits that the petitioner is residing in the State of Uttar Pradesh at Meerut and therefore, her grandfather, who was a freedom fighter, was the resident of Gangoli Ghat, District – Pithoragarh (State of Uttarakhand). The petitioner has rightly filed certificate which indicate that her grandfather was a freedom fighter within the meaning of the Reservation Act and that is sufficient for claiming benefit under the Reservation Act and also, sufficient to seek benefit under the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex Serviceman) Act, 1993 (hereinafter referred to as, ‘the Act of 1993’). 9. It is further submitted that clause (b) of section 2 of the Act of 1993 defines “dependent” with reference to freedom fighter, which includes son and daughter (married or unmarried) and grandson (son of a son) and unmarried granddaughter (daughter of a son), of the freedom-fighter. He further submits that in view of the aforesaid provision, the petitioner, being a granddaughter of the freedom fighter, is entitled for the reservation. 10. Learned counsel for the petitioner has placed reliance upon the decision of a Division Bench of this Court in Anmol Deep Vs. State of U.P. & 3 Others (Writ C No. 23936 of 2018, decided on 07.09.2018); wherein, while permitting the petitioner for admission in the MBBS course, it has been held that the law cannot exclude freedom fighters domiciled outside the Uttar Pradesh from their status of a freedom fighter and therefore, the condition of domicile contained in section 2(d) of the Act of 1993 has to be ignored to bring it within the fundamental framework of principle of equality contained in Articles 14 & 15 of the Constitution of India. 11. Learned counsel for the petitioner further submits that the case of Anmol Deep (supra) is also squarely covered the issue in question and submits that a freedom fighter living in any place in India would remain a freedom fighter and he/she does not lose his/her status by shifting domicile from one place to another. 11. Learned counsel for the petitioner further submits that the case of Anmol Deep (supra) is also squarely covered the issue in question and submits that a freedom fighter living in any place in India would remain a freedom fighter and he/she does not lose his/her status by shifting domicile from one place to another. The nation recognizes him to be a freedom fighter irrespective of his place of birth or residence, etc. and therefore, the petitioner is entitled for the benefit of her being dependent of freedom fighter. 12. Per contra, learned chief standing counsel submits that the advertisement issued on 14.01.2018 for the post in question is very clear and the conditions mentioned therein has to be fulfilled in letter and spirit. No deviation can be permitted from the said condition. He further submits that the candidates claiming benefit of reservation has to comply with the conditions enumerated in the advertisement. The candidate claiming the benefit of reservation under the “Dependent of Freedom Fighter” has to file the certificate issued by the competent authority of the State of Uttar Pradesh. He has relied upon the contents of paragraph no. 5 of the counter affidavit and submits that there is a discrepancy in the certificate of dependent of freedom fighter submitted by the petitioner. He further submits that in serial no. 1 of paragraph 5.4 of the advertisement, it was clearly mentioned that the format of certificate for dependent of freedom fighter has to be according to format – 3, which shall be issued by the District Magistrate concerned of the State of U.P. He further submits that the Board by its letter/order dated 23.04.2019 has recommended for cancellation of the petitioner’s candidature, which is on record as Annexure No. CA-3 to the counter affidavit, which has not been challenged by the petitioner. It is further submitted that vide order dated 09.10.2019, the Board has rejected the candidature of the petitioner. The said order has not been challenged by the petitioner. 13. Learned chief standing counsel further submits that the benefit of reservation has been allowed as per the provisions of Act of 1993 and if the petitioner is aggrieved, then she should have challenged the vires of the Act of 1993. In support of his contention, learned chief standing counsel has placed reliance upon the decision of this Court in State of U.P. & Others Vs. In support of his contention, learned chief standing counsel has placed reliance upon the decision of this Court in State of U.P. & Others Vs. Tejaswi Kumar Pandey (Special Appeal No. 137 of 2016, decided on 19.07.2017); wherein, the Division Bench of this Court, while setting aside the order passed by the learned Single Judge, has held that so far as the Act of 1993 is concerned, it has extended the benefit of reservation only in respect of such freedom fighters who were the domicile of the State of U.P. 14. He further submits that by the Act of 1993, the benefit of freedom fighter has been extended to the persons, who were domicile of the State of Uttar Pradesh and the said Act is binding upon the State authorities. He further submits that the judgement relied upon by the learned counsel for the petitioner in Anmol Deep (supra) is distinguishable on the fact that the aforesaid matter pertains to grant of benefit for admission in MBBS course. 15. Learned chief standing counsel further submits that the case in hand also pertains to service matter and the decision in Tejaswi Kumar Pandey (supra) covers the issue and in view of the said fact, the writ petition deserves to be dismissed on this ground alone. 16. It is undisputed fact that the petitioner had applied for the post of Constable in Civil Police and had claimed the reservation under the category of “dependent of freedom fighter”. In support her claim, the petitioner had filed a certificate issued by the District Magistrate, Pithoragarh, State of Uttarakhand. In the said certificate, some discrepancies have been pointed out by the State authorities, which have not been clarified by the petitioner. More precisely, the certificate of dependent of freedom fighter, which has been filed as Annexure No. 9 of the writ petition, has been doubted to be correct. Further, clause 7(2) (ga)(4) of the advertisement reads as under:- ^^¼4½ Lora=rk laxzke lsukuh vkfJr izek.k i= jkT; ljdkj }kjk fu/kkZfjr izk#i fuxZr gksuk pkfg;sA** 17. From the perusal of the aforesaid clause, it transpires that the certificate of dependent of freedom fighter should be issued in the prescribed format, duly issued by the authorities of the State of Uttar Pradesh; whereas, in the case in hand, the certificate has been issued from the authority of the State of Uttarakhand. 18. From the perusal of the aforesaid clause, it transpires that the certificate of dependent of freedom fighter should be issued in the prescribed format, duly issued by the authorities of the State of Uttar Pradesh; whereas, in the case in hand, the certificate has been issued from the authority of the State of Uttarakhand. 18. It is further not in dispute that under the provisions of the Act of 1993, the benefit of being a dependent of freedom fighter can be extended only in a case where the freedom fighter was a domicile of the State of Uttar Pradesh. The Division Bench of this Court in the case of Tejaswi Kumar Pandey (supra) has held as follows: “It is not in dispute that as per Section 2(Gha) of the Act, 1993, the benefit of being the dependent of a freedom fighter can be extended only in case where the freedom fighter was a domicile of the State of U.P. This provision is not under challenge in the writ petition. The learned Single Judge has lost sight of said fact and has proceeded to opine that the freedom fighter is a freedom fighter for the entire nation, he cannot be termed to be a freedom fighter of the State of U.P. or Jharkhand. Therefore, the status of a freedom fighter is not diluted merely because his dependants have started living in a different State. Although the learned Single Judge is correct that the freedom fighter, had fought for the entire country, his place of domicile is not relevant, but so far as the Act, 1993 is concerned it has extended the benefit of reservation only in respect of such freedom fighters who were the domicile of State of U.P. The said definition under the Act is binding upon the State authorities. The vires of Section 2(Gha) was not under challenge. In view of above, the judgment impugned of the learned Single Judge is hereby set aside. The writ petition is restored to its original number. The petitioner, if so advised, may challenge the vires of section 2(Gha) of the Act, 1993 by filing an appropriate application before the writ court. The special appeal is allowed subject to observations made hereinabove.” 19. The learned counsel for the petitioner has relied upon the judgement in Anmol Deep (supra). The writ petition is restored to its original number. The petitioner, if so advised, may challenge the vires of section 2(Gha) of the Act, 1993 by filing an appropriate application before the writ court. The special appeal is allowed subject to observations made hereinabove.” 19. The learned counsel for the petitioner has relied upon the judgement in Anmol Deep (supra). In the said judgement itself, the Court was of the view that the case of the Tejaswi Kumar Pandey (supra) was in respect of service matter and had strictly applied the definition; whereas, the case of Anmol Deep (supra) was not related to the service matter, but for getting admission in MBBS Course. Therefore, the said decision is of no help to the petitioner herein. The present case pertains to the service matter, which, even as per the decision in Anmol Deep (supra), has to be strictly applied with the definition of the Act of 1993. 20. In view of the aforesaid facts and circumstances of the case, the petitioner has failed to file the certificate of dependent of freedom fighter as per the clause 7(2)(ga)(4) of the advertisement in question. Therefore, no interference is called for under Article 226 of the Constitution of India. 21. The writ petition is devoid of merits and it is, accordingly, dismissed.