# Heena Bisht v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-14
- **Case number:** WRIT A No. 14138 of 2019
- **Bench:** Piyush Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heena-bisht-v-state-of-u-p-ors-45819
- **Pages:** 6

## Headnote

A. Service Law - Recruitment - Uttar
Pradesh Reorganization Act, 2000; Uttar
Pradesh Public Service (Reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex Serviceman)
Act, 1993: Section 2(b), 2(d) - 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 a
freedom fighter was a domicile of the
State of Uttar Pradesh. (Para 18)

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. 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. (Para 16, 17)
The petitioner 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. (Para 20)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

890 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The judgment of the Uttrakhand
High Court in The State Transport
Authority (Supra) does not help the
petitioners for the simple reason that it
has not considered Section 65(1) of the
Act,
1988
which
vest
the
state
government with power to frame rules
subject to the restriction put under Section
66(1) of the Act,1988.

29. Consequently, for the reasons
given above, we do not find any
substance in the argument of learned
counsel for the petitioners that the State
Government is not competent to amend
Rule 222 (D) of Rules, 1998.

30. Thus, both the writ petitions lack
merit and are dismissed. There shall be no
order as to costs.
----------
(2020)06ILR A890
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE PIYUSH AGARWAL, J.

WRIT A No. 14138 of 2019

Heena Bisht ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Suresh Kumar Maurya

Counsel for the Respondents:
C.S.C.

A. Service Law - Recruitment - Uttar
Pradesh Reorganization Act, 2000; Uttar
Pradesh Public Service (Reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex Serviceman)
Act, 1993: Section 2(b), 2(d) - 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 a
freedom fighter was a domicile of the
State of Uttar Pradesh. (Para 18)

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. 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. (Para 16, 17)
The petitioner 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. (Para 20)

Writ petition dismissed. (E-4)

Precedent followed:

1. State of U.P. & ors. Vs Tejaswi Kumar
Pandey (Special Appeal No. 137 of 2016,
decided on 19..07.2017) (Para 13, 15, 18)

Precedent distinguished:

1. Anmol Deep Vs St. of U.P. & 3 ors., 2018
(10) ADJ 94; 2018 (131) ALR 931 (Para 10,
11, 14)

(Delivered by Hon'ble Piyush Agarwal, J.)

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.
6 All. Heena Bisht Vs. State of U.P. & Ors. 891

(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 dcecide 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. 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
892 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Prior to the said Act, the
Uttrakhand 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 freedomfighter. 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. The nation recognizes him to be
6 All. Heena Bisht Vs. State of U.P. & Ors. 893
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. 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
894 INDIAN LAW REPORTS ALLAHABAD SERIES
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:-

((4) Lora=rk laxzke lsukuh
vkfJr izek.k i= jkT; ljdkj }kjk fu/kkZfjr
izk#i fuxZr gksuk pkfg;s A"

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. 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). 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
6 All. Rajendra Kumar & Ors. Vs. Raj Kumar 895
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.
----------
(2020)06ILR A895
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 18711 of 2019

Rajendra Kumar & Ors. ...Petitioners
Versus
Raj Kumar ...Respondent

Counsel for the Petitioners:
Sri Manish Kumar Nigam

Counsel for the Respondent:
Sri Arpit Agarwal

A. Practice & Procedure - Release
Application
-
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and
Eviction)
Act,
1972:
Section
21(1)(a), (b) - The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent
and Eviction) Rules, 1972: Rule 17 - The
landlord is not required to establish his
financial capacity to reconstruct the building if
the release is sought on the ground that the
building is bonafide required after demolition
and new construction for use and occupation
of the landlord. However, if the tenant
disputes the financial capacity of the landlord
to reconstruct the building, the tenant ha to
plead in the written statement challenging the
financial capacity of the landlord and prove it
with by leading cogent evidence. (Para 19, 20)
The landlord in a proceeding under Section
21(a) of the Act has to establish that his need
is bonafide and genuine, and that comparative
hardship lay in his favour, once he satisfies
these conditions, release application deserved
to be allowed even if the release of the
building is sought on the ground that building
is bonafide required for use and occupation
after demolition and reconstruction. (Para 19)

Writ Petition rejected. (E-10)

List of cases cited: -

1. K.N. Anantharaja Gupta Vs. D.V. Vijaykumar
(smt) 2007 (13) SCC 592 (distinguished)

2. Shree Krishan Garg Vs. Rajendra Singh and
ors. 2003 (51) ALR 209

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned Sri Manish Kumar
Nigam, counsel for the petitioner and Sri
Arpit
Agrawal,
Counsel
for
the
respondent.

2. Petitioners by means of present
writ
petition
have
challenged
the
judgement and order dated 31.1.2017
passed
by
Civil
Judge
(Senior
Division)/Prescribed Authority, Pilibhit
allowing the P.A. Case No. 18 of 2014
(Raj Kumar Vs. Yashwant Singh and
another) and the judgement and order
dated
24.9.2019
passed
by
Third
Additional District & Sessions Judge,
Pilibhit dismissing the P.A. Appeal No. 5
of 2017 (Yashwant Singh (deceased) and