Savitri Devi Bora And Another vs State Of Uttarakhand And Others

Sudhanshu Dhulia, J

Petitioner no. 2 before this Court claims his descendant to a freedom fighter from the side of his mother and hence claims benefit of reservation in service being dependent of freedom fighter, where admittedly 2% horizontal reservation is given to the dependents of freedom fighters.

In the State of Uttarakhand, however, the definition of the "dependent" was more or less the same as given in t the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom-Fighters and Ex-Servicemen) Act, 1993, which is applicable in the State of Uttarakhand in view of Section 87 and 88 of the U.P. Reorganistion Act, 2000 as the same has been adopted by the State of Uttarakhand. Now this position has somewhat changed with the clarification by the State by the Government Order dated 16.09.2011, where the definition of "dependent of freedom fighter" has been given as under:-

"(a) Son and daughter (married or unmarried) and

(b) Grandson (son of the son) and

(c) Married or unmarried granddaughter (daughter of son)"

A bare perusal of the aforesaid provision would show that in case of a grandson or a granddaughter though reservation benefits can be taken, but only where the son or the daughter traces descendant to freedom fighter through his/her father and not through his/her mother. In other words, the daughter of a freedom fighter though would be entitled for the benefit of reservation but this benefit will not pass on her son or her daughter (whether married or unmarried).

Mr. C.D. Bahuguna, learned Senior Counsel for the petitioners submits that this is clearly violative of Article 14 of the Constitution of India and smacks of a "gender bias". This benefit is also liable to be extended to the son as well as the daughter (whether married or unmarried) of freedom fighter's daughter, who claim their lineage through the daughter of the freedom fighter.

On the request made by petitioner no. 2 before the District Magistrate, Champawat, for grant of certificate of a dependant of a freedom fighter, the officer expressed helplessness to issue such a certificate in favour of petitioner no. 2 in view of position of law which excluded him from this benefit. Hence the present writ petition.

In the counter affidavit, the respondent State has relied upon the definition of "dependent of freedom fighter" given in the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom-Fighters and Ex-Servicemen) Act, 1993 and more particularly the definition given in the Government Order dated 16.09.2011 and would argue that petitioner no. 2 is clearly excluded from the definition and he does not come under the 2% horizontal reservation, which is given to the dependents of freedom fighter.

One thing is clear that the "dependent" here does not mean "financially dependent". "Dependent" here would actually mean someone who is a descendant of freedom fighter. This benefit has been extended not only to the children of the grand-father but also to the children of the children of the grand-father. There is, however, a violation of Article 14 of the Constitution of India inasmuch as though as far as the children of a son of a freedom fighter are concerned, the benefit is extended to them but this benefit is not extended to the children of a daughter of a freedom fighter!

Learned Senior Counsel for the petitioner has relied upon a decision of the Division Bench of Allahabad High Court in Isha Tyagi v. State of U.P. and others reported in 2014 (6) AWC 6138, where similar provision was under challenge. In the provision as it is applicable in the State of U.P. only an unmarried grand-daughter who is daughter of son of a freedom fighter was entitled for the benefit of 2% horizontal reservation. This was held to be violative of Article 14 of the Constitution of India.

Though as per the definition as given in the State of Uttarakhand, both married as well as unmarried granddaughter are eligible but the fact remains that whether it is a married or an unmarried daughter, she has to be the daughter of a "son" of a freedom fighter. In other words, she has to be of a lineage through her father. In case she is claiming her lineage through her mother she becomes ineligible!

A Division Bench of Allahabad High Court" has made elaborate discussion as to the purpose behind making 2% horizontal reservation for the dependants of freedom fighter in Government service, which was broadly in recognition of the seminal contribution of freedom fighters in our freedom struggle, and in that light the granddaughters or grandsons who claim their lineage through their mother should not be denied the benefits. It was stated as under :

"The basis and object of the horizontal reservation of 2% is to reognise 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 * Isha Tyagi v. State of U.P. and others, 2014 (6) AWC 6138 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 view thereof a grandson or granddaughter, who claims his/her lineage through mother cannot be denied the benefit of 2% horizontal reservation being a "dependents of freedom fighter". He/She has to be included amongst the beneficiary and therefore the classification made by the State is not sustainable in the eyes of law and it has to read after it is compatible with the provisions of Constitution i.e. Article 14 and 15. Consequently, the benefits to grandsons and granddaughters, who claim their lineage through their mother shall also be extended to them.

As a result, the writ petition succeeds and is hereby allowed. The concerned District Magistrate is directed to take a decision based on the above findings. If he comes to the conclusion that the maternal grandfather of petitioner no. 2 was a freedom fighter and if he is in direct line of descendent, let the certificate of dependent of freedom fighter be issued to petitioner no. 2.