# Santosh Kumar Upadhyay v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-14
- **Case number:** Writ-A No. 370 of 2016
- **Bench:** V.K. Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-upadhyay-v-state-of-u-p-ors-43399
- **Pages:** 11

## Headnote

C.S.C., Nisheeth Yadav
The
Uttar
Pradesh
Public
Services
(Reservation for physically handicapped,
dependent of freedom fighters & Exservicemen)(Amendment
Act
2015
Section-2)-enforced
w.e.f.
07.04.2015keeping
in
view
of
judgment
dated
26.08.2014 by Hon'ble High Court-petitioner
appeared as General candidate-declared
successful in preliminary examination as well
as in written examination in pursuance of
advertisement
dated
28.01.2015-U.P.
Combined
State/Upper
Subordinate
Examination
(General/Special
recruitment) 2015-dependent of freedom
fighters certificate issued on 21.04.2015during process of examination claimed 2
% reservation under freedom of fighter's
quota-held-"yes"-deny the benefit of being
descendant of freedom fighter having
lineage through married daughter-can not
be
approved-necessary
direction
for
treating dependent of freedom fighterissued.
Held: Para-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
154
 INDIAN LAW REPORTS ALLAHABAD SERIES
Fighters having his/her lineage through
married daughter cannot be approved of
by us.

## Text

1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors.
153
Bajariya vs. State of Gujarat decided on
26.04.2013 has reduced the rigorous
punishment awarded under Section 489-B
IPC from 8 years to almost 4 years but in
the present case a large number of fake
currency notes have been recovered, in
such situation, we think instead of
imprisonment for life, imprisonment of
ten years RI would serve the ends of
justice. To this extent appeals deserve to
be allowed.
31. Accordingly, both the appeals are
partly allowed. The conviction of the
appellants under Sections 489-B & 489-C
IPC is affirmed and their sentences awarded
under Section 489-C are set aside. Sentence
of imprisonment for life awarded under
Section 489-B IPC are altered to undergo
rigorous imprisonment of ten years.
32. To the aforesaid extent the
impugned judgment and orders of the trial
court dated dated 10.02.2014 passed in
Sessions Trial No. 16 of 2013 [State Vs.
Ashfaque and another] are modified.
33. Office is directed to certify this
order to the court concerned forthwith for
compliance and to send back the lower
court record.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.01.2016
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ-A No. 370 of 2016
Santosh Kumar Upadhyay ...Petitioner
Versus
State of U.P. & Ors.
.
..Respondents
Counsel for the Petitioner:
Rakesh Kumar Tiwari
Counsel for the Respondents:
C.S.C., Nisheeth Yadav
The
Uttar
Pradesh
Public
Services
(Reservation for physically handicapped,
dependent of freedom fighters & Exservicemen)(Amendment
Act
2015
Section-2)-enforced
w.e.f.
07.04.2015keeping
in
view
of
judgment
dated
26.08.2014 by Hon'ble High Court-petitioner
appeared as General candidate-declared
successful in preliminary examination as well
as in written examination in pursuance of
advertisement
dated
28.01.2015-U.P.
Combined
State/Upper
Subordinate
Examination
(General/Special
recruitment) 2015-dependent of freedom
fighters certificate issued on 21.04.2015during process of examination claimed 2
% reservation under freedom of fighter's
quota-held-"yes"-deny the benefit of being
descendant of freedom fighter having
lineage through married daughter-can not
be
approved-necessary
direction
for
treating dependent of freedom fighterissued.
Held: Para-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
154
 INDIAN LAW REPORTS ALLAHABAD SERIES
Fighters having his/her lineage through
married daughter cannot be approved of
by us.
(Delivered by Hon'ble V.K. Shukla, J.)
1. 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. 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
1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors.
155
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 Vs. State of U.P. and others, Writ
Petition No. 41279 of 2014, decided on
26.8.2014 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. 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
156
 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Writ Petition
No. 41279 of 2014 (Isha Tyagi Vs. State
of
U.P.
&
others)
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. 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
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
1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors.
157
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.
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
158
 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.
IT IS HEREBY enacted in the Sixtysixth 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
1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors.
159
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 ExServicemen) 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 vs. 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 ExServicemen) (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. 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
160
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
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
1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors.
161
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 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.
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 Vs. State of U.P. &
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
162
 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 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.
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
1 All. C/M Shri Lal Bahadur Shashtri Junior High School Vs. Bapu Shiksha Samiti & Ors.
163
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.
-------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2016
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal Defective No. 847 of 2015
C/M Shri Lal Bahadur Shashtri Junior
High School
 ...Appellant
Versus
Bapu Shiksha Samiti & Ors. .Respondents
Counsel for the Appellant:
Balwant Singh
Counsel for the Respondents:
C.S.C., Arun Kumar, Rajeev Misra
High Court Rules, 1952-Chapter VIII Rule5-Special Appeal against interim order-by
Learned
Single
Judge-granted
stay
without discussion of fact or reasons-heldmaintainable-neither the party nor the
Appellate Court could understand the
reason justifying the grant of interim
order-liberty to move fresh for interim
protection before Single Judge.
Held: Para-1
Even at the interlocutory stage, it is
necessary for the Court to bear in mind
the basic principles governing the grant
of an interim injunction, namely, the
issue of a prima facie case, balance of
convenience and irreparable harm.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud C.J.)
1.
The impugned order of the
learned Single Judge which is of an
interlocutory nature furnishes absolutely
no reason as to why the learned Single
Judge has stayed the operation of the
order dated 29 May 2015 passed by the
District
Basic
Education
Officer,
Gorakhpur. The order neither records the
submission nor does it carry any prima
facie evaluation of facts. Even at the
interlocutory stage, it is necessary for the
Court to bear in mind the basic principles
governing the grant of an interim
injunction, namely, the issue of a prima
facie case, balance of convenience and
irreparable harm.
2. Absent any reason whatsoever,
neither the parties nor, for that matter, the
appellate court would have the benefit of
understanding the basis on which the
interlocutory order has been passed.
3.
For these reasons, we allow the
special appeal and set aside the impugned
order dated 12 June 2015 passed by the
learned Single Judge. However, we grant
liberty to the original petitioner to move the
learned Single Judge afresh for the grant of
protective interim relief.