- (1.) Heard Sri Subhash Vidyarthi, learned counsel for appellants, and Sri Rakesh Chandra Tiwari, learned counsel for respondents.
(2.) As requested by learned counsel for the parties, we proceed to hear and decide this appeal at this stage, under the Rules.
(3.) This intra court appeal, under Chapter VIII Rule 5 of Allahabad High Court Rules, has arisen from judgment dated 31.01.2014 passed by learned Single Judge in Writ Petition No. 7618 (S/S) of 2014 (Divya Mani Tripathi Versus State of U. P. and others), which reads as under: "Heard Sri V.C. Shukla learned counsel for the petitioner and Sri Subhash Vidyarthi who has filed counter affidavit which has been served on the petitioner. The petitioner says that he does not want to file rejoinder affidavit and he may be heard on the basis of his arguments. The case may be decided on the basis of his arguments. The petitioner is a dependent of a freedom fighter. The necessary certificates have been issued in his favour. Those documents have been annexed with the application. Counter affidavit has been filed by Sri Subhash Vidyarthi. This factual aspect has not been denied. Petitioner has raised a legal plea that reservation according to the U.P. Public Services (Reservation for SC/ST Act, 1993 declares that there shall be reservation at the stage of direct recruitment, two percent of vacancies for freedom fighters and 1% for ex-service man shall be allowed. Public services have been defined in the U.P. Public Services ( Reservation of SC & ST and other Backward Classes), Act, 1994 in 2(c)(iii) public service and posts have clearly been mentioned to include as 'Board' or 'Corporation' or 'Statutory Body'. It is very clear from the provisions of these Acts that the opposite parties no. 2 and 3 are covered by these Acts. Reservation to the dependents of the freedom fighters ought to have been given to the petitioner. Sri Subhash Vidyarthi on the strength of counter affidavit has also argued that there is a Government Order dated 13.7.1998 in pursuance of which an order has also been issued on October 16, 2002. He has argued that the advertisement was made on the strength of the Government Order as well as the Board order. Counsel for the petitioner has forcefully argued that any government order can not overrule the provisions of an Act. The argument is clearly acceptable to the court. The provisions of the Act of 1994 can not be overridden by the government orders as mentioned in the counter affidavit. Accordingly, the position of law is clear. If the petitioner has applied under the freedom fighter quota and his candidature is not in doubt, as has been admitted in the counter affidavit the opposite parties are bound to give him benefit of the reservation policy. The opposite parties are directed to include the petitioner in the category of reservation and give him the benefit of 2% reservation and consider his case accordingly. His case shall not be considered in general category. This order has been passed almost at the fag end of the day. It might take little time to issue a certified copy of the order. The order has been passed in presence of Sri Subhash Vidyarthi who is directed to communicate the order telephonically to opposite party no. 3 who should act according to the directions of the court.";