# Isha Tyagi v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-26
- **Case number:** Civil Misc. Writ Petition No. 41279 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/isha-tyagi-v-state-of-u-p-ors-43104
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-14,
15Discrimination benefit of reservationbeing
grand
children
of
freedom
fighters-denial on ground of gender
being
married
grand
daughter-not
entitled
held-unconstitutional-when
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
married
grand
son
entitled-married
grand daughter can not be excluded.

Held: Para-8
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.

Case Law discussed:
(2014) 5 SCC 438

## Text

3 All]. Isha Tyagi Vs. State of U.P. & Ors.
1145
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to
only those situations which subserve the
basic object and purpose which is sought
to be achieved;

(ii) There is no general or vested
right to compassionate appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where such
a provision is made in an administrative
scheme or statutory rules, compassionate
appointment must fall strictly within the
scheme or, as the case may be, the rules;

(iii) The object and purpose of
providing compassionate appointment is
to enable the dependent members of the
family of a deceased employee to tide
over the immediate financial crisis caused
by the death of the bread-earner;"

9. Supreme Court in State of Uttar
Pradesh and others vs. Pankaj Kumar
Vishnoi (2013) 11 SCC 178 held as follows:

"22. It is accepted position that the
respondent appeared in the test and could
not qualify. Once he did not qualify in the
physical test, the High Court could not
have asked the department to give him an
opportunity to hold another test to extend
him
the
benefit
of
compassionate
appointment on the post of Sub-Inspector
solely on the ground that there has been
efflux of time. The respondent after being
disqualified in the physical test could not
have claimed as a matter of right and
demand for an appointment in respect of
a particular post and the High Court
could
not
have
granted
further
opportunity after the crisis was over".

10. Applying the law on the facts of the
case in hand, it is not disputed that the
petitioner was appointed on Class-IV post
under the Dying in Harness Rules to tide over
the distress which the family was facing by
the sudden death of his father. The
appointment exhausted his claim, once right is
consummated
any
further
or
second
consideration for compassionate appointment
would not arise. Compassionate appointment
is not a vested right and if such a plea is
accepted it would violate the principles
enshrined in Article 14 and 16 of the
Constitution of India.

11. For the facts and reasons stated
herein above, the writ petition is devoid of
merit and is, accordingly, dismissed.

12. No order as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 41279 of 2014

Isha Tyagi. ..Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Narendra Pratap Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-14,
15Discrimination benefit of reservationbeing
grand
children
of
freedom
fighters-denial on ground of gender
being
married
grand
daughter-not
entitled
held-unconstitutional-when
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
married
grand
son
entitled-married
grand daughter can not be excluded.

Held: Para-8
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.

Case Law discussed:
(2014) 5 SCC 438

(Delivered by Hon'ble Dr. D.Y.
Chandrachud, J.)

1. A brochure which has been issued
by the State for entrance to medical
courses in the State of Uttar Pradesh,
described as CPMT 2014, prescribes the
time lines and conditions of eligibility.
The brochure envisages that candidates
have to submit online applications. The
petitioner claims to be a grand-daughter
of a freedom fighter of Tehsil-Deoband,
District Saharanpur, by the name of
Buchha alias Dileep Singh Tyagi. The
petitioner has annexed a copy of a
certificate dated 26 September 1988
issued to her mother stating that she is the
daughter of the above mentioned freedom
fighter.
The
petitioner
applied
for
admission in pursuance of the information
brochure.
Under
the
brochure,
a
reservation of 2% has been provided for
descendants of freedom fighters on a
horizontal basis. The condition stipulates
that the reservation would enure to the
benefit of actual descendants of freedom
fighters which is defined to include sons,
unmarried daughters and son's sons. The
condition in the brochure specifies that
the son of a freedom fighter is not
required to be financially dependant.

2. The petitioner applied online for
admission. The online code for the
general category is ten and for the
dependants of freedom fighters, it is
fifteen.
The
petitioner
submitted
representations to the second, third and
the fourth respondents on 14 July 2014
and 19 July 2014 seeking extension of the
benefit of reservation in the quota set
apart for dependants of freedom fighters.
By an e-mail in response, the petitioner
was directed to present her case at
counselling.
The
grievance
of
the
petitioner is that she has been treated as a
general category candidate and assigned
an overall rank of 20798 whereas her rank
in the female category is 9469.

3. The petitioner is aggrieved by the
discrimination which has been made in
the quota of 2% set apart for descendants
of freedom fighters; in that, the children
of a daughter of a freedom fighter are
excluded. This condition is postulated on
the basis that only an unmarried daughter
is entitled to the benefit of horizontal
reservation and hence neither a married
daughter nor her children would be
entitled to receive the same benefit. This,
it has been submitted, is contrary to
Articles 14 and 15 of the Constitution.

4. By an order dated 12 August
2014, the State was directed to file a
counter affidavit explaining in particular
the basis for the decision to exclude the
children of the daughter of a freedom
3 All]. Isha Tyagi Vs. State of U.P. & Ors.
1147
fighter from the benefit of horizontal
reservation.
The
learned
Standing
Counsel appearing for the respondents
informs
the
Court
that
despite
a
communication dated 13 August 2014, no
instructions have been made available.

5. 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. 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.

6. In National Legal Services
Authority Vs 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 selfidentification, 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,
..............."

7. It would be anachronistic to
discriminate against married daughters by
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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.

8. 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.

9. 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.
3 All].Zila Panchayat Muzaffarnagar & Anr. Vs. District and Session Judge, Muzaffarnagar & Anr. 1149

10. The writ petition is, accordingly,
allowed in the aforesaid terms. There
shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, .J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 43917 of 2014

Zila Panchayat, Muzaffarnagar & Anr.
 ...Petitioners
Versus
District and Session Judge, Muzaffarnagar
& Anr. ...Respondents

Counsel for the Petitioners:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh

Counsel for the Respondents:
Sri Manish Kumar Goyal

Constitution of India, Art.-226-read with
General Rule Criminal-Rule 85-Claim by Zila
Panchayat-whatsoever fine realized
by
court-be remitted in account of Zila
Parishad-held-distinction between the fine
realized in criminal prosecution shall go in
treasury under Rule 72-but the Court not
obliged to transmit in fund of local bodies-in
absence of such provision in adhiniyamclaim of panchayat -not acceptable.

Held: Para-14
Learned counsel for the petitioner has
been unable to show any such provision
which
may
directly
and
specifically
authorise the Zila Panchayat to receive
the amount of penalty realised as fine in
a criminal prosecution by a court of
competent jurisdiction according to Rule
85 of General Rules Criminal. It is only
such fines that can be credited as
required by law. In the instant case in
the absence of any such law having been
pointed out which may authorise the Zila
Panchayat to claim such fines to be
deposited in its funds as a matter of
right, the prayer made by the petitioner
Zila Panchayat cannot be acknowledged
or accepted in law.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri Ashish Kumar Singh,
learned counsel for the petitioner and Sri
Manish Goyal for the respondents. This
matter had been adjourned to enable the
learned counsel for the petitioner to point
out the provisions under which the Zila
Panchayat is claiming its rights and powers
to receive the amount of fine that is realised
as penalty in criminal prosecutions by a
court of competent jurisdiction.

2. The petitioner had earlier filed
Writ Petition No. 24330 of 2014 and the
same was permitted to be withdrawn to
enable the learned counsel to file a better
writ petition after explaining the powers
and rights under which such payment is
sought to be invoked by the petitioner to
realise fine and seek deposit thereof with
the Zila Panchayat. The judgment is
quoted herein under:-

"Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Vivek Kumar Birla, J.

After the matter was heard and having
perused Rules 72 and 85 of the General
Rules (Criminal), we find that the writ
petition appears to be for the purpose of
claiming a substantive right to receive the
amount of fine which is realized for violation
of the bye-laws of the Zila Panchayat.

The writ as framed, in our opinion,
does not take the point home and,
therefore,
learned
counsel
for
the