Appellant seeks appointment as Assistant Teacher under freedom fighter's dependant category. Court rejects claim as application was filed under unreserved category before a certificate was obtained years after counselling ended; prior precedents not applicable as they concerned later advertisements.
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Court No. - 39
Case :- SPECIAL APPEAL No. - 312 of 2018
Appellant :- Hansraj Tyagi Respondent :- State Of U.P. And 2 Ors Counsel for Appellant :- Seemant Singh Counsel for Respondent :- C.S.C.,Prem Prakash Yadav
Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.
The claim of the appellant-petitioner for being considered as a dependant of freedom fighter in regard to the selections made on the basis of an advertisement dated 27 August 2013 has not found favour of a learned Judge of this Court in Writ Petition No. 4791 of 2018 filed by the appellant for the reason that the petitioner had not claimed this benefit while submitting application pursuant to the aforesaid advertisement.
It was sought to be contended by learned counsel for the petitioner before the learned Judge that the authorities were duty bound to treat the petitioner as dependant of freedom fighter on the basis of the certificate issued to the petitioner subsequently on 20 June 2017. Learned counsel for the writ petitioner had placed reliance on a Division Bench judgment of this Court in Isha Tyagi Vs. State of U.P. and others1 to contend that the benefit of horizontal reservation of 2% for freedom fighters should also extend to the descendants of freedom fighters tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter. The learned Judge found that the application for appointment would have to be examined with reference to the material annexed with the application and not with regard to the documents obtained by the petitioner subsequently. In the opinion of the learned Judge, the eligibility has to be determined with reference to the cut off date for making application and any subsequent certificate would not be a relevant material. The petitioner
1 2014 (9) ADJ 331
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was, therefore, considered as a candidate belonging to the unreserved category and the category could not be changed merely because of a certificate having issued to the petitioner subsequently on 20 June 2017.
Learned counsel for the appellant has submitted that once there was a declaration of law by a Division Bench of this Court that the horizontal reservation of 2% for descendants of freedom fighters shall extend to the descendants of a married daughter also, it was obligatory for the Authority to have considered the case of the petitioner under this category. In this connection, learned counsel has placed before the Court a Division Bench judgment rendered in Santosh Kumar Upadhyay vs. State of U.P. and others2 and a judgment of a learned Judge of this Court in Writ-A No. 33578 of 20173 decided on 1 August 2017.
Learned counsel appearing for the respondents has submitted that the 7th round of counselling concluded in 2015-16 and it is only on 20 June 2017 that the petitioner obtained a certificate and thereafter filed the writ petition in 2018. His contention, therefore, is that the Authorities cannot be compelled to hold another round of counselling for the petitioner in 2018 after three years.
We have considered the submissions advanced by learned counsel for the parties.
It is not in dispute that the advertisement against which the petitioner applied for being considered for appointment as Assistant Teacher was issued on 27 August 2013. The last date mentioned for submission of the application form was 24 September 2013. The petitioner submitted the application treating himself to be a candidate belonging to the unresereved category. Even though seven rounds of counselling were held, the petitioner was not called for counselling
3 Monika Vs. State of U.P. and others
2 2016 (2) ADJ 825
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because he did not obtain the requisite minimum marks for the unreserved category. The seventh round of counselling which was the last round round was held in 2015-16. Even till that stage, though the judgment was rendered in Isha Tyagi on 26 August 2014, the petitioner did not make any claim for being considered as a dependant of a freedom fighter. The petitioner moved an application for grant of the requisite certificate and it was issued to the petitioner only on 20 June 2017. The writ petition was filed in the year 2018. It is in the light of the aforesaid facts that the Court has to examine whether a direction should now be issued to the respondents to hold another round of counselling so that the petitioner can be considered for appointment on the post of Assistant Teacher by treating him as a candidate belonging to the category of dependent of freedom fighter.
We find it difficult to accept the submission advanced by learned counsel for the writ petitioner. Even the judgment rendered in Santosh Kumar Upadhyay, on which reliance has been placed by learned counsel for the appellant, the Court in Paragraph 12 observed that it is only in regard to the advertisement issued after Isha Tyagi that the Public Service Commission would have to grant benefit of the reservation to the dependants of married daughter also. Admittedly, the advertisement in this case was issued prior to the judgment in Isha Tyagi that was delivered on 24 August 2014. This apart, the petitioner also did not make any attempt to move an application before the authorities when the counselling was going on for claiming the benefit of this reservation and it is after the period of almost two years that the petitioner filed the writ petition claiming his benefit. The judgment rendered in Santosh Kumar Upadhyay , therefore, does not help the appellant. The case of Monika also would be of no benefit to the appellant as the judgment indicates that the petitioner had made a claim when the counselling was going on and she has filed a writ petition which was disposed of with a direction to the respondents to
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consider the case of the petitioner in the light of directions issued in Isha Tyagi .
In the instant case as noted above, it was after a long interval of time that the appellant moved an application for grant of a certificate and that too after almost two years after the last counselling was held and then filed a writ petition in 2018 claiming this benefit.
Thus, for all the reasons stated above, we are of the considered view that there is no good ground to interfere with the judgment of learned Judge.
The Special Appeal is, accordingly, dismissed.
Order Date :- 10.4.2018 sartaj
(Dilip Gupta,J.)
(Neeraj Tiwari,J.)
2 issues framed by the court
Whether a late claim for reservation benefit as a dependent of a freedom fighter after the closure of counselling rounds warrants condonation of delay and a fresh round of selection.
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Colour shows how this judgement treated each authority
Isha Tyagi Vs. State of U.P. and othersDistinguished¶7
Isha Tyagi Vs. State of U.P. and others
Santosh Kumar Upadhyay vs. State of U.P. and othersDistinguished¶11
Santosh Kumar Upadhyay vs. State of U.P. and others
Monika Vs. State of U.P. and othersDistinguished¶19
Monika Vs. State of U.P. and others
1 provisions across 1 enactments
Hansraj Tyagi
State Of U.P.
2 Ors
Dilip Gupta
Neeraj Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
