- (1.) VIKRAM Nath, J. Both these writ petitions have been filed with a prayer to command the respondents to permit the petitioners to appear in the interview for the post of Lecturer in Hindi under the category of dependents of freedom fighters against the Advertisement No. 32 issued by the U. P. Higher Education Service Commission. Both these petitions relate to Advertisement No. 32 only. Pleadings in both these petitions are also similar. Both these petitions, being similar in nature, and the relief claimed also being similar, they are being heard together. The pleadings of Writ Petition No. 22497 of 2004 are being referred to in this judgment.
(2.) UPON a request being sent by the Director, Higher Education, U. P. , the Uttar Pradesh Higher Education Service Commission issued Advertisement Nos. 30, 31 and 32 jointly inviting applications for the post of Lecturer in different degree colleges and post graduate colleges for appointment of Lecturers in different institutions all over the State. A copy of the advertisement has been filed as Annexure 1. According to the advertisement, total of 82 vacancies for the post of Lecturer in Hindi were advertised and the break up given was 41 posts for General category, 22 posts reserved for Other Backward Caste category, 17 posts reserved for the Scheduled Caste category and 2 posts reserved for the Scheduled Tribes category. The advertisement further mentioned that the reservation applicable for physically handicapped, dependents of freedom fighters and ex-service men was also applicable in the selection. According to both the petitioners, they had applied under the category of dependents of freedom fighters, but the respondents had illegally not applied the reservation in accordance with law for the dependents of freedom fighters and therefore, they were being illegally deprived from being considered under the said category. Counter-affidavit has been filed by the respondents in which the fact that the petitioners have applied and are eligible for consideration under the dependents of freedom fighters category, is not disputed. The controversy which has arisen upon the filing of the counter-affidavit is that the respondents have not correctly applied the provisions of U. P. Act No. 4 of 1993. What has been stated in the counter- affidavit filed by Shri Nakachhed Ram posted as Assistant Director in the Directorate of Higher Education, is that although 2% reservation quota is admissible for the dependents of freedom fighters, but out of 41 vacancies for General Category, one post was reserved for the dependents of freedom fighters. It has further been stated in the counter-affidavit that horizontal reservation for physically handicapped, dependents of freedom fighter and Ex-service men quota are allowed within the prescribed quota of General, OBC, SC and ST category. Paragraph 5 of the counter-affidavit containing these averments is quoted hereunder: "that the contents of paragraph No. 6 of the writ petition are not admitted for the reason already given in para 1 (d) of this counter-affidavit. However, it is pertinent is submit that vertical reservation cannot exceed 50% of total vacancies. Hence, horizontal reservations for Physically Handicapped, Dependent of the Freedom Fighter and Ex-Serviceman quota are allowed within the prescribed quota of General, OBC, SC and ST category. It is further submitted that only 2% reservation quota is admissible for the dependents of freedom fighter (Annexure 1 to this counter-affidavit ). In the present case, out of 41 vacancies for General category one post was reserved for the dependent of Freedom Fighters. Hence, the averments to the contrary made in para under reply are incorrect and therefore denied. " These averments, it is alleged, are based upon the interpretation of a Government Order dated 22nd October, 2001 filed as Annexure CA-1 to the counter-affidavit of Dr. Nakachhed Ram. Clause 6 of the said Government Order is relevant for the present controversy. The same is quoted hereunder:
(3.) IT has further been alleged in the counter-affidavit filed on behalf of the State as well as the Commission that the index of the petitioners was less than the minimum index in the general category up to which level the candidates in the general category were called for interview, as such the petitioners were not called for interview. However, pursuant to interim order passed by this Court, it is stated in the supplementary counter-affidavit of the Commission that the petitioners have been interviewed, however, their results have not been declared as per the interim order of this Court. From the stand taken by the respondents, basically three questions arise in these petitions. Firstly while applying the U. P. Act No. 4 of 1993 whether the vacancies are to be calculated separately for each caste category or on the entire number of posts advertised? The second question is whether the candidates, seeking reservation under the U. P. Act No. 4 of 1993, have to compete with the candidates of their respective caste category? Lastly to what relief are the petitioners entitled?;