Court No. - 40
Case :- SPECIAL APPEAL No. - 1082 of 2018 Appellant :- Dinesh Kumar Home Guard No.3711020361 And Others Respondent :- State Of U.P. And 5 Ors.
Counsel for Appellant :- Siddharth Khare,Ashok Khare,Umang Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Heard Sri Ashok Khare, learned Senior Counsel for the appellants and the learned Standing Counsel for the State.
The challenge raised in this petition is to the judgment of the learned Single Judge dated 24th September 2018 on the ground that firstly the benefit of horizontal reservation as directed under the Government Order dated 25th January 1995 was not incorporated in the advertisement mentioning a minimum eligibility criteria of three years functioning as a Home Guard. Learned counsel submits that in the absence of any such provision in the advertisement, the Government Order does not preclude the appellants from consideration.
It is further submitted by Sri Ashok Khare that the said provision is also unsustainable in law, inasmuch as, this Court in the judgment in the case Hari Shanker Upadhyay Vs. Public Service Commission, Uttar Pradesh Allahabad 1998 (2) AWC 937 while considering the horizontal reservation for ex-service man held that the prescription of five years military service under a Government Order could not be a condition precedent so as to eliminate them from consideration. Learned counsel submits that in the present case also the same analogy would apply and the Government Order dated 25th January 1995 cannot be pressed into service so as to non suit the appellants. The learned Single Judge according to him has not taken notice of the aforesaid judgment and the aforesaid analogy, and therefore the impugned judgment deserves to be set aside.
The third ground raised by Sri Khare on the strength of averments made in paragraph nos. 19 and 20 of the stay application where it is alleged that certain candidtates who had alegedly used a whitener during examinations succeeded in the legal battle from the Supreme Court and they had also not put in three years length of service as required under the Government Order, yet they have been included and have been extended the benefit of selection. He therefore submits that this violates Article 14 of the Constitution of India, and consequently on this ground as well the impugned judgment deserves to be set aside.
Learned Standing Counsel on the other hand contends that prescription of three years minimum service as a home guard was essential for the purpose of seeking benefit of horizontal reservation, and it is not a mere precondition for age relaxation. He further submits that the judgment of the Full Bench in the case of Hari Shankar Upadhayay (supra) as relied on by the learned counsel for the appellant would not come to the aid of the appellant, inasmuch as, in that case the Government Order dated of 1985 was under consideration by way of a reference. In the present case, there is no challenge raised to the Government Order dated 25th January 1995 under which the said prescription has been introduced and continues to be in force.
On the third ground of equality, the learned Standing Counsel contends that no parity can be claimed on the strength of such candidates who by virtue of the order passed by the Apex Court have been included and that the Apex Court also was not considering any such issue with regard to minimum prescription as involved in the present controversy. He therefore submits that any benefit extended under a judicial pronouncement would not amount to laying down a law to that effect, of which advantage can be taken of by the appellants.
We have considered submissions raised and what we find is that the Government Order dated 25th January 1995 is not under challenge. In the absence of any challenge raised, the ratio of the decision in the case of Hari Shanker Upadhyay would not be attracted. The same is an executive instruction, and therefore has the force of law. It's existence cannot be diluted and if the same has not be specifically mentioned in the advertisement, the advertisement cannot be said to have an overriding effect on the prescription already made which is in force since the year 1995. The contention that it is only a statutory provision which will prevail when there a conflict, is a misconceived argument and it is accordingly rejected.
The question of the claim of parity with those who have succeeded before the Supreme Court as stated in paragraph nos. 19 and 20 of the affidavit is concerned, we are inclined to accept the argument advanced by the learned Standing Counsel to the effect that if they have been extended any such benefits the same does not amount to an adjudication of the controversy presently involved. Nothing has been shown to us that the Supreme Court had considered the minimum prescription of three years in the cases of such constables who have been extended the benefit as stated in paragraph nos. 19 and 20 of the stay application.
Accordingly, we do not find any merit in the appeal.
Rejected.
Order Date :- 29.10.2018 M. ARIF