Allahabad High Court
Alok Tripathi vs State Of U.P. And 12 Others on 7 March, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:41396 Court No. - 36 Case :- WRIT - A No. - 4477 of 2016 Petitioner :- Alok Tripathi Respondent :- State Of U.P. And 12 Others Counsel for Petitioner :- Satyendra Narayan Singh,R.K. Mishra,Shiv Prakash Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Pranesh Dutt Tripathi Hon'ble Saurabh Shyam Shamshery,J.
1. Sri R.K. Mishra, learned counsel for petitioner and Ms. Shruti Malviya, learned Brief Holder for State are present.
2. This is second round of litigation. The petitioner has approached earlier by way of filing a Writ No. 54551 of 2014 and an interim order dated 13.10.2014 and corrected order dated 15.10.2014 therein was passed and are quoted below -:
?13.10.2014 In view of the Division Bench decision of this Court in Writ Petition No.41279 of 2014 (Isha Tyagi Vs. State of U.P. and 3 others) this Court directs the respondents to allow the benefit of being a freedom fighter's grand daughter to the petitioner provisionally, which will be subject to the result of this writ petition.?
?15.10.2014 Order on the Correction Application Heard learned counsel for the applicant.
In the fifth line of my original order dated 13.10.2014 the word 'grand daughter' be read as 'grand son'. The order is corrected accordingly.
The application is accordingly disposed of.?
3. The above referred writ petition was finally decided by coordinate Bench of this Court vide order 20.05.2015 which is mentioned below -:
?Heard learned counsel for the petitioner and the learned standing counsel appearing on behalf of the State-Respondents.
The writ petition has been filed, inter alia, for the following reliefs :-
1. Issue a writ order or direction in the nature of mandamus commanding the respondents to extend the benefit of reservation to the petitioner under the Dependent of Freedom Fighter quota.
2. Issue a writ order, or direction in the nature of mandamus directing respondent to allow the petitioner to appear in the counselling of Teacher's Training of Primary school of U.P. Basic Shiksha Parishad considering the merit list under category of dependent of freedom fighter quota.
The petitioner had applied for selection as a trainee teacher in the primary schools, run by the Basic Shiksha Parishad, pursuant to an advertisement issued in the year 2011. According to the advertisement, the reservation policy of the State Government shall apply to the selection. The case of the petitioner is that his mother Smt. Kusum Devi is the daughter of Sri Ram Krishna Shukla, who was a freedom fighter. It is submitted that in view of the above, the petitioner was entitled to his candidature being considered under the category of the descendant of a freedom fighter. However, the said benefit was being denied to him on the ground that it is only the male lineal descendants of a freedom fighter, who will get the said benefit and not the descendent of a daughter. In this regard, reliance has been placed on a Division Bench judgement of this Court in Isha Tyagi v. State of U.P. and others1 wherein this Court has held that even the children of the daughter of a freedom fighter would be entitled to the benefit of the horizontal reservation.
At the time when the writ petition was entertained, an interim order dated 13.10.2014 was passed whereby, the respondents were directed to extend the benefit of being a descendant of a freedom fighter, to the petitioner, though it was made subject to the final decision of the writ petition.
The petitioner has now filed a supplementary affidavit in which it is stated that the petitioner had appeared in the counselling in district Kaushambi and wherein he was also selected but his result is not being declared in view of the fact that the benefit extended to the petitioner by interim order dated 13.10.2014, was made subject to the decision of the writ petition. Sri S.N. Singh, counsel for the petitioner informs the Court that the petitioner had also appeared in the counselling from district Allahabad, he was also selected, but his result has not been declared so far.
Sri A.K. Yadav, learned standing counsel appearing on behalf of the State-Respondents does not dispute the legal position that even a daughter's son of a freedom fighter would be entitled to the benefit of horizontal reservation as per the decision of this Court in the case of Isha Tyagi (supra).
Such being the legal position, this writ petition is disposed of with the clarification that the benefit of being a descendant of a freedom fighter, shall not be denied to the petitioner merely for the reason that he is a daughter's son, of a freedom fighter, and not a male lineal descendant.
However, whether the petitioner is truly a descendant of a freedom fighter or not, including such other factors, as would be necessary to admit of such claim, are matters for the authorities to verify.
Subject to the aforesaid observations/directions, writ petition stands disposed of.?
4. In aforesaid circumstances, claim of petitioner was considered and by impugned order dated 28.12.2015 it was rejected and relevant part thereof is quoted below -:
????? ?? ?????? ?? ?? ???? ?? ???????? ?????????? 105 (????????? ???? ?? ??-??-????? ?? ?? ???? ?? ????) ???? ?? ???? ??? ???? ?? ??? ???? ???? ??? ??? ????-?????? ?? ??????? ?????? ?????? ????? ??? ????? ?? ?????? ???? ?????? ????-?????? ?? ??????? ??? ??????????? ?? ???? ????? ??? ??? ???? ?????? ?????????? ??????? ?????? ?? ?????? ?? ??? ??? ????? ?????? ?????? ??? ??? ?? ???? ?? ??? ??? ???? ?????? ????????? ?????? ??? ??????? ????? ???? ??? ????? ???????????? ?? ?????? ???? ?? ?????/?????????/??? ?????? ?? ???????? ????? ???? ??? ????? ?????? ?? ???? ??? ???? ?? (X) ????? ???? ?? ?????? ?????????? ??????? ?????? ?????? ??????? ???? ?? ???????? ????? ???? ???? ???? ?? ???? ???? ?? ?????? ??? ???????? ???????? ?? ???? ?????? 25.03.2014 ?? ??????? ??? ???????? ??????? 3116/79-5-14(10)/2010, ?????? ??????-5, ?????? 27.09.2011 ?? ?????? ????????? ?????? ??? ?? ??????? ??? ???????? ????????? ?????? 30.11.2011 ?? ??????? -7 '?' ??? ???????? ????????? ?? ?????? ??? ?? ?????? ??? ???? ?? ?????????? ??????? ?????? ?????? ?? ??? ??? ????? ?????? ?????? ??? ??? ?? ????? ???? ???? ???? ???? ???? ??? ??? ???? ???? ???? ???????? ?????? ????????? ?????? ??? 2011 ?? ??????? ??? ???????? ??????????? ????? ???? ?? ???? ??????? ???? ????? ???? ??? ??? ?????? ???? ???????? ?? ????????? ???? ?? ????? ??? ???? ?? ??????????? ????? ???? ?? ???? ?????? ???? ??? ????????? ???? ???? ????
5. In aforesaid circumstances, petitioner has approached this Court by way of filing present petition.
6. This Court has passed following interim order on 02.02.2016 -:
"The petitioner is a son of a Freedom Fighter's daughter. While applying for the post of Assistant Teacher he was not aware that the daughter's son of a Fredom Fighter is also entitled for the benefit of reservation, therefore, he had applied as a general candidate. Later on he came to know about the judgement of a Division Bench of this Court passed in the case of Isha Tyagi v. State of U.P. & others (Writ-A No.41279 of 2014), decided on 26.08.2014, the petitioner preferred a writ petition, Writ-A No.54551 of 2014 (Alok Tripathi v. State of U.P. & others) for the following relief:
"(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to extend the benefit of reservation to the petitioner under the Dependent of Freedom Figther quota.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to appear in the counselling of Teachers' Training of Primary School of U.P. Basic Shiksha Parishad considering the merit list under category of Dependent of Freedom Fighter quota."
In paragraph-13 of the Writ-A No.54551 of 2014 (Alok Tripathi v. State of U.P. & others), the petitioner had clearly stated that since he had no knowledge about the judgement passed in the case of Isha Tyagi (supra), therefore, he had applied as a general candidate. The paragraph-13 of the said writ petition is extracted hereunder below:
"13. That the petitioner being fully eligible and qualified applied against the said advertisement however since in the application it was clearly mentioned the category of freedom fighter as category A but since the petitioner was no knowledge regarding that benefit therefore he has filled up at the place of category 8 as Category 01 i.e. general category."
This Court initially granted an interim order permitting the petitioner to appear in the counselling in Districts Kaushambi and Allahabad. In compliance of the interim order, the petitioner was allowed to participate in the counselling in Districts Kaushambi and Allahabad.
It is stated that in case the petitioner is extended the benefit of horizontal reservation under the Freedom Fighter quota he would be selected.
The aforesaid writ petition was disposed of on 20.05.2015 with the following observations/directions:
"Such being the legal position, this writ petition is disposed of with the clarification that the benefit of being a descendant of a freedom fighter, shall not be denied to the petitioner merely for the reason that he is a daughter's son, of a freedom fighter, and not a male lineal descendant. However, whether the petitioner is truly a descendant of a freedom fighter or not, including such other factors, as would be necessary to admit of such claim, are matters for the authorities to verify."
In compliance thereof, the impugned order has been passed by the Director rejecting the claim of the petitioner on the ground that the petitioner in his application form had not sought the reservation and against the column of reservation he has made a mark of cross. In view of the said fact the benefit of the reservation under the Freedom Fighter quota has not been extended to the petitioner.
It is contended on behalf of the petitioner that the fact that in the application form he had not sought any reservation due to lack of knowledge was clearly stated in the earlier writ petition and this Court in spite of the said fact has issued a direction to the Director to extend the benefit of the reservation in case the petitioner's grand-father was a Freedom Fighter (father of the petitioner's mother). It is further urged that the direction of this Court has not been followed by the Director and he has rejected the cause of the petitioner.
I have heard learned counsel for the petitioner and the learned Standing Counsel.
From a perusal of the order of the Director, it manifestly clear that he has travelled beyond the jurisdiction.
Learned Single Judge has directed him only to verify the documents that whether the claim of the petitioner that the father of his mother was a Freedom Fighter was to be ascertained.
The issue with regard to his candidature as a general candidate was before the learned Single Judge, who has not accepted the plea of the department.
By virtue of the interim order, the petitioner has already appeared in the counselling in Districts Kaushambi and Allahabad.
Learned Standing Counsel appears for the State functionaries. Sri A.K. Yadav, learned Advocate appears for the B.S.A., Allahabad. Sri P.D. Tripathi, learned Advocate has accepted notice on behalf of the B.S.A., Kaushambi.
As prayed by them four weeks' time is granted to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.
The B.S.A., Allahabad and the B.S.A., Kaushambi are directed that in case the petitioner's marks is above the cut off marks after giving the benefit of the reservation under the Freedom Fighter quota, he shall be appointed provisionally and his appointment shall abide by the result of the writ petition. The said exercise shall be completed within four weeks from the date of communication of this order.
List after expiry of the aforesaid period."
7. Aforesaid order was challenged by State by way of filing Special Appeal No. 451 of 2016. Said appeal was allowed by following order dated 06.02.2023 -:
"1. A perusal of the interim order passed by learned Single Judge dated February 2, 2016 shows that directions had been issued for appointment of the respondent herein, in case he had secured marks more than the cut off marks secured by the candidate in the reserved category of Freedom Fighter. The writ petition is still pending.
2. Considering the fact that the directions issued by the learned Single Judge are in the form of final relief, though said to be provisional, we deem it appropriate to set aside the part of the interim order directing the present appellants to examine the case of the respondent with reference to the marks secured by him in the reserved category of Freedom Fighter and issue him provisional appointment letter subject to result of the writ petition and request the learned Single Judge to hear and dispose of the writ petition expeditiously as the issue pertains to selection and appointment of the respondent.
3. The present appeal is, accordingly, disposed of.
4. Writ-A No.4477 of 2016 be listed as per roster before the learned Single Judge on February 20, 2023."
8. Learned counsel for petitioner submits that in terms of Isha Tyagi vs. State of U.P. and others, 2014 (9) ADJ 331 as well as a subsequent judgment also, the petitioner being son of grand-daughter of Freedom Fighter is also entitled for reservation in the category of dependent of Freedom Fighter, however, he has not disputed that when application form was filled in the year 2011, aforesaid benefit was not available since above referred judgments were passed subsequently.
9. Learned counsel further submits that petitioner?s claim is still surviving as there are vacancies exist. Even this Court has granted permission for candidates who fall in the list of 12091 candidates. A claim is also made that petitioner falls within said list also.
10. Learned Brief Holder for State has not disputed aforesaid legal position and he further submits that since petitioner has not claimed said reservation at stage of filling up form, he could not be permitted to take it subsequently. Even otherwise, process has already been concluded.
11. At this stage, learned counsel for petitioner has referred a judgment passed by coordinate Bench of this Court on 01.08.2017 in Writ A No. 33578 of 2017 (Monika vs. State of U.P. and others) that in similar circumstances, benefit was granted to petitioner therein.
12. Heard learned counsel for parties and perused record.
13. It is not in dispute that when application form was filled in 2011, petitioner was not entitled to claim benefit of dependent of Freedom Fighter as well as he has filled up the form in UR category. Benefit accrued only in terms of Isha Tyagi (supra) in the year 2014. The petitioner has earlier approached this Court and his claim was rejected by impugned order essentially on a ground that since reservation was not available to petitioner at the stage of submitting application form, he cannot claim it subsequently.
14. In Monika (supra), in similar circumstances, benefit has been granted to petitioner therein but said writ petition filed in the year 2016 and in 2017 matter was decided within the year, however, the present case is pending for last more than 8 years and undisputedly the process of examination has been concluded in terms of judgment passed by Supreme Court.
15. Only limited window is open by a recent judgment of this Court qua to candidates fall in the list of 12091 candidates.
16. In aforesaid circumstances, since much water has flown, therefore, this Court is of considered view that at this belated stage, claim is not sustainable.
17. However, petitioner will be at liberty that in case he falls in the list of 12091 candidates, he may take a benefit of judgment passed by this Court in Vinay Kumar Pandey and others vs. State of U.P. and others, 2024:AHC:5922 in general category.
18. With above observations, this writ petition is disposed of.
Order Date :- 7.3.2024 N. Sinha