Kumari Sunita Rawat vs Public Service Commission & Others

Sudhanshu Dhulia, J

The petitioner before this Court had filed this writ petition claiming to be a dependent of freedom fighter and in that capacity sought employment in Government service on the post of Lecturer (Hindi), which was reserved for the dependent of freedom fighter.

It is an admitted fact that respondent no. 3 was selected for the said post but due to the interim order dated 14.06.2011 passed by this Court in the present writ petition, the appointment of respondent no. 3 was stayed.

Meanwhile, this matter came up for final hearing before a Coordinate Bench of this Court and the Coordinate Bench of this Court vide order dated 09.05.2018 dismissed the writ petition of the petitioner with the following order:-

"None is present for the petitioner.

Mr. K.N. Joshi, Deputy Advocate General for the State.

The petitioner has not proved that she is the ward of freedom fighter. The reservation was provided only to the wards of the freedom fighter.

Accordingly, there is no merit in the petition and the same is hereby dismissed."

In other words, the writ petition was dismissed in the absence of the counsel for the petitioner though ostensibly it is on merit as the learned Single Judge of this Court was of the opinion that the petitioner was not a ward of a freedom fighter.

Now a recall application along with the delay condonation application has been filed by the applicant/petitioner for recalling the order dated 09.05.2018.

In the interest of justice, the delay condonation application is allowed. The delay in filing the recall application is hereby condoned.

On the grounds urged, the recall application is allowed. The order dated 09.05.2018 is hereby recalled.

Heard learned counsel for the parties.

The petitioner claims to be an unmarried grand daughter of a freedom fighter and claims benefit in Government service for the seats which are reserved for dependents of freedom fighters.

The case of the petitioner is that she as well as the private respondent no. 3 both had applied under the category of dependents of freedom fighters for the post of Lecturer (Hindi). According to the petitioner, the case of respondent no. 3 has been wrongly considered and in fact she was not eligible for appointment on the post reserved for the dependent of a freedom fighter.

"Dependent" to a freedom-fighter has been defined under Section 2 (b) of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom-Fighters and Ex-Servicemen) Act, 1993, which reads as under:-

Definitions.- In this Act-

(a) ......

(b) "dependent" with reference to a freedom-fighter means,-

(i) son and daughter (married or unmarried);

(ii) grandson (son of a son) and unmarried grand daughter (daughter of a son), of the freedom-fighter;"

The case of the petitioner is that respondent no. 3 at the relevant time was not an unmarried grand daughter of a freedom fighter and therefore she was not eligible. Admitted case of both the parties is that respondent no. 3 had more marks than the petitioner.

As far as consideration of respondent no. 3 is concerned, although the Act speaks of only an "unmarried grand daughter", but the Division Bench of the Allahabad High Court in the case of Isha Tyagi vs. State of U.P. and other passed in Civil Misc. Writ Petition No. 41279 of 2014, has held the said provision to be violative of Articles 14 and 15 of the Constitution of India. The Division Bench of the Allahabad High Court had this to say on this aspect:-

"6. 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 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 benent 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 martial 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."

It was thus ordered 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. Therefore the restriction is not valid in law.

Moreover, in the present case, respondent no. 3 at the time when she had filed her application for the post was unmarried in any case, states the learned counsel for respondent no. 3.

Respondent no. 3 was always entitled for the reservation under the Act.

The writ petition is devoid of merit and the same is hereby dismissed. Interim order dated 14.06.2011 is hereby vacated.

Uttarakhand Public Service Commission is hereby directed to send the recommendation to the State Government which shall then act in accordance with law.

Correction application also stands disposed accordingly.