Isha Tyagi Vs. State of U.P.
| Case Name | Isha Tyagi Vs. State of U.P. |
| Equivalent Citation | 2014(107) ALR 61 |
| Date of Judgement | 26th August 2014 |
| Court | In the High Court of Allahabad |
| Case Number | Civil Misc. Writ Petition No. 41279 of 2014 |
| Case Type | Civil Misc. Writ Petition |
| Petitioner(s) | Isha Tyagi |
| Respondent(s) | State of U.P. and 3 others. |
| Bench | (Division) D.Y. Chandrachud, C.J. and Dilip Gupta, J. |
| Referred | Article 14, 15 of Constitution of India, 1950 |
Keywords- Actual Descendants, Horizontal Basis Reservation, Freedom Fighters, Grandchildren, Writ Petition.
OVERVIEW OF THE CASE
INTRODUCTION
This writ petition arises from the deniability of horizontal reservation to the petitioner as was advertised in a brochure issued by the UP government described as CPMT 2014 delineating the timeline and conditions of eligibility; further the brochure asked for the submission of application to be made online.
Under the brochure, a reservation of 2% was provided for the descendants of freedom fighters on a horizontal basis. The condition further stipulated that the benefit of reservation would be ensured to actual descendants of freedom fighters which included sons, unmarried daughters and son’s sons.
The petitioner, with stated facts on record, claimed to be a granddaughter of a freedom fighter of Tehsil- Deoband, District Sharanpur, by the name of Buchha alias Dileep Singh Tyagi. To further substantiate her claim, she produced a copy of certificate dated 26 September1988 issued to petitioner’s mother stating that she is the daughter of the said freedom fighter.
Thereafter, the petitioner applied online for admission under online code 15 being for the dependents of freedom fighters whereas for the general category it was 10.
The petitioner submitted representations to the second, third and the fourth respondents on 14 July, 2014 and 19 July, 2014 seeking extension of the benefit of reservation in the quota set apart for dependants of freedom fighters. By an e-mail in response, the petitioner was directed to present her case at counselling. The grievance of the petitioner is that she has been treated as a general category candidate and assigned an overall rank of 20798 whereas her rank in the female category is 9469.
ISSUE RAISED
- Is exclusion of married daughter from descendants owing to the artificial schism of actual descendants i.e., son(s), male grandchildren, unmarried daughter justifiable with rationality?
CONTENTIONS OF THE PETITIONERS
- The petitioner stated that due to the ‘exclusion of the children of a daughter’ in the 2% quota set apart for descendants of freedom fighters is discriminatory and violative of articles 14 and 15 of the constitution.
- The condition of not including the children of a daughter was made on the basis that only an unmarried daughter being part of the actual descendants is entitled to the benefit of horizontal reservation. The petitioner contended that only because she is married, she shouldn’t be denied the right of claiming reservation as it violates her right guaranteed in the constitution.
CONTENTIONS OF THE RESPONDENTS
By an order dated 12 August, 2014, the State was directed to file a counter-affidavit explaining in particular the basis for the decision to exclude the children of the daughter of a freedom fighter from the benefit of horizontal reservation. The learned Standing Counsel appearing for the respondents informs the Court that despite a communication dated 13 August, 2014, no instructions have been made available.
Thus, due to the lapse in filing the reply the case was decided on merits.
RATIO DECIDENDI
It was posited that any discrimination against the daughter would plainly be discrimination owing to their gender and that if done, will consequently violate the fundamental rights of equality and prohibition of discrimination on the ground of sex and more importantly, if the marital status of the son doesn’t make any discrimination to his entitlements and neither does it excludes or ostracizes him on the basis of marital status then the marital status of daughter shouldn’t be any different.
The court stated in the judgment that the rationale of reservation of 2% was to recognise the seminal role of the freedom fighters in the freedom struggle and thus the reservation is extended to their descendants thus, there is no rationale to exclude a married daughter and consequently the children of a married daughter. Her exclusion of her will engender disregard to the constitutionally guaranteed fundamental right.
The right under article 15 was reiterated and the ambit explained to mean that it is broad enough to encompass gender discrimination and any such discrimination in per contra, the right to equality.
It further was laid with disenchantment that the grandchildren irrespective of gender must have been treated on equal footing and it is an invidious basis of discrimination against married daughters and their children. The court also retorted that the anachronistic notion of ‘a married daughter upon her marriage ceases to be a part of her parent’s family’, must go under a rethink.
CONCLUSION
The court directed that the benefit of horizontal reservation being sought by the petitioner is subject to due verification as regards its authenticity and stated that the benefit and entitlements of horizontal reservation for descendants of freedom fighters should be extended to both the son and the daughter immaterial being the marital status of the latter.
This judgement speaks loud and clear on the pedestal of gender equality as was being denied to the petitioner to her claim of descendancy only because she was a married female of the joint hindu family and accordingly the actual descendants of the family were considered to be son, son’s son and unmarried daughter excluding her.
As was duly noted and quite rightly so by the court in the judgement that whether grandchildren should be entitled to the benefit of a welfare scheme is a matter of policy for the state to decide but to confine the benefits to grandchildren of a particular gender or gender of a parent is clearly not for the state to delve.
Therefore, it is a no brainer that if the benefit was available to the son irrespective of his marriage the same should be case with the girl as any other basis but this, will not be tenable and rightly unsustainable, as held.
LATEST DEVELOPMENT
In 2019, before the High Court of Uttarakhand, in the case of Ruchika Tomar v. State of Uttarakhand and anr. (2019 SCC OnLine Utt 483) the case with similar facts and circumstances came for consideration, although before this consideration, in the same court, the full bench affirmed and seconded with the ratio of Isha Tyagi V. State of U.P.
In Ruchika Tomar’s case the court thus concurred and acknowledged the affirmation of the full bench by extending the benefit by stating –
extension of benefit of the daughter, granddaughter or grandson (i.e. Nati and Nitini) of the freedom fighter as they cannot be discriminated against on the basis of gender discrimination. Consequently, in accordance with The Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993
This article is written by Sumit Kumar Singh of Institute of Law, Nirma University, an intern under Legal Vidhiya.
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