Vedansh Dwivedi vs State Of Uttarakhand And Another

Sudhanshu Dhulia, J

The only question before this Court is whether the petitioner is entitled to get a certificate of freedom fighter or not. Admittedly the maternal grandfather of the petitioner i.e. father of the petitioner's mother was a freedom fighter. The Government Order dated 16.09.2011, however, only recognises the sons and the daughters of the freedom fighter and thereafter the sons and daughter of the male lineage of the freedom fighter as the dependents of freedom fighter and not the descendants of the female lineage of the freedom fighter.

A similar controversy had come up before this Court in the case of Smt. Savitri Devi Bora and another v. State of Uttarakhand and others (Writ Petition (M/S) No. 2794 of 2017. This Court relying upon the decision of Division Bench of Allahabad High Court in the case of Isha Tyagi v. State of U.P. and others reported in 2014 (6) AWC 6138, came to the conclusion that this is purely a gender bias, which is in violation of Article 14 of the Constitution of India. The Division Bench of Allahabad High Court in the case of Isha Tyagi (supra) had said 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 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. Order dated 29.07.2016 passed by the Secretary, Department of Home, Government of Uttarakhand is hereby quashed. 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 the petitioner was a freedom fighter and if he is in direct line of descendent, let the certificate of dependent of freedom fighter be issued to the petitioner.