IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL

WRIT PETITION (PIL) No. 67 of 2011

In the matter of appointments of activists on Group ‘C’ and

Group ‘D’ posts under the “Uttarakhand Rajya Andolan Ke
Ghayal / Jail Gaye Andolankariyon Ki Sewayojan Niyamawali,
2010”

…..…… Petitioner

versus

State of Uttarakhand and others

...………. Respondents

Present: Mr. Arvind Vashistha, Senior Advocate (Amicus

Curiae) for the petitioner.
Mr. S.N. Babulkar, Advocate General for the State
assisted by Mr. Paresh Tripathi, Chief Standing
Counsel for the State.
Mr. Raman Kumar Shah, Intervener (in person)
Mr. M.S. Pal, Senior Advocate assisted by Mr. Amir
Malik, Advocate; Mr. S.K. Jain, Senior Advocate
assisted by Mr. Siddhartha Jain, Advocate; Mr. M.C.
Pant, Mr. Mahesh Chandra Pant; Mr. Siddhartha Sah;
Mr. C.K. Sharma, Advocates for the interveners.

JUDGMENT

Coram: Hon’ble Sudhanshu Dhulia, J.

Hon’ble U. C. Dhyani, J.
 2

Per: U.C. Dhyani, J.

Those who have less in life, should have more

in law. The underlying philosophy behind reservation can
be summed up in this sentence. Some are born backward
(weak), some ‘become’ backward and some have
backwardness ‘thrust’ upon them. Women, physically
challenged, Scheduled Castes and Scheduled Tribes,
according to some, are born with relatively lesser
credentials in life. Conferring of ‘other backward class’
status sans creamy layer, becoming physically challenged
during the course of their life, dependents of freedom
fighters and ex-servicemen come in the second category. If
at any point of time, it is found that such status is ‘thrust’
upon any class, then, on being challenged, such reservation
is struck down by the Constitutional Courts. Definition of
Uttarakhand Andolankaries (who can loosely be termed as
agitators or activists) depicts that it is a class carved out of
those who participated in struggle for creation of
Uttarakhand. It was a people’s movement – a mass
movement, in which, it can be said, that almost everyone
participated directly or indirectly. It was a non-violent
agitation for creation of Uttarakhand on peculiar
demography, cultural and social ethos, which were quite
distinct from plain areas of erstwhile State of Uttar Pradesh.
Not all the people, who participated in the movement, have
been defined as Andolankaries. Those, who sustained
injuries, were caused hurt and went to jail for a certain
period have been defined as Andolankaries.
 3

2) The antagonists of such definition would

propagate that what is so peculiar about the classification?
Why seven day’s imprisonment and hurt only? Why not to
include all those who participated in such a movement? In
the heart of their heart, the antagonists of such reservation
want the scope of reservation for Andolankaries to be
expanded. They want that the scope of reservation for such
Andolankaries should not be confined to a narrow compass.
The protagonists, on the other hand, would argue that there
has to be some criteria, a classification, with the object
sought to be achieved. If such criterion is found to be
reasonable, then it will withstand the touchstone of the
Constitution, otherwise not. I pose a question to myself –
What is so special about the criterion that those obtaining
33 per cent marks in examination will be declared passed?
Why not 34 per cent or 35 per cent? In some examinations,
it is 50 per cent. Devil’s Advocate will argue, why not 55
per cent? Well, it is left to the wisdom of the Legislature
(in the instant case, Executive), who has carved out a
definition that those undergoing jail for seven days or more
and those sustaining injury etc. will be defined as
Andolankaries. Legislature is the best body to adjudge the
some.

3) Article 309 of the Constitution of India gives

rule making power to the Executive. Otherwise, the service
laws are framed and passed by the Legislature. The Court
should not substitute its own discretion for the well-defined
discretion exercised by the Executive. The Court should
interfere only when it is violative of the Constitution. A
law can also be read down if there is lack of legislative
 4

competence and it does not withstand the test of scrutiny by

Constitutional Courts. In the instant case, there is no lack
of legislative competence. The State Government has
issued Government Orders and framed the rules for
reservation in respect of State services. The identification
of Andolankaries is done by the District Magistrates on the
basis of verified facts. True, these Andolankaries cannot be
equated with freedom fighters, who fought for the
independence of the country, but the Andolankaries, at the
same time, cannot be termed as separatists. Their demand
was for separate statehood within Indian Union and within
constitutional framework, having full faith in the
Constitution of India. Constitution of India provides for
carving out new States. Our’s is a federal polity. It is
federal in character, although unitary in approach. The
movement for separate statehood was a peaceful agitation,
a movement on Gandhian path. A classification for those
Andolankaries, who have served imprisonment for seven
days or more and / or sustained injuries cannot be said to be
unreasonable classification with the object sought to be
achieved. The object is the same which is in the case of
dependants of freedom fighters, ex-servicemen and
physically challenged persons etc. Even project affected
persons have been granted reservation in service in the Sate
of Maharashtra. In some States, distinguished sportspersons
are granted reservation in service.
 5

4) I have the privilege of enlightening myself with

the well-composed judgment written by my learned senior
brother, who has delineated entire facts leading to filing of
present P.I.L. Learned brother has held that present P.I.L.
is maintainable. I entirely agree with him. I also agree
with my learned brother that reservation can be made in
government services by executive orders. My learned
senior brother has also taken pains to discuss the important
question – Whether benefit of reservation can be granted to
the Andolankaries and / or their dependents in public
service, or not? I feel, I should discuss the same.

5) By means of Government Order no. 1269 of

2004, dated 11.08.2004, one time reservation in
government service is given to those Andolankaries, who
were either injured or were jailed for seven days or more.
This was one time reservation for Class III and Class IV
posts in government service, which are outside the purview
of the State Public Service Commission. Under
Government Order no. 1270 of 2004, which was passed on
the selfsame date, 10 per cent horizontal reservation on the
posts in government service was earmarked for those
Andolankaries, who were jailed for less than seven days. It
was applicable for five selection years, 2000-2005 and
2008-2009 only. Classification need not be scientifically or
mathematically perfect. The State can make law when the
classification has an intelligible differentia and a rationale
with the object sought to be achieved. I agree with my
learned senior brother that Andolankaries cannot be
equated with freedom fighters, yet it cannot be denied that
 6

an attempt has been made by the State Government to

classify them as one class and while categorizing them as a
class, has made an attempt to define as to who will be an
Andolankari.

6) In Uttar Pradesh Public Service (Reservation

for Physically Handicapped, Dependents of Freedom
Fighters and Ex-Servicemen) Act, 1993, it was defined as
to who will be the freedom fighter. Similar attempt has
been made, in the instant case, by defining who will be an
Andolankari and, therefore, it cannot be said that such
definition is not based upon any reasonable criteria. At
least, there is criteria, and the criteria cannot be said to be
arbitrary. It is not an example of unreasonable
classification. It is, therefore, acceptable. An argument
that they are violative of provisions of the Constitution
does not impress me. We have an example of the Uttar
Pradesh Recruitment of Dependents of Government
Servants (Dying in Harness) Rules, 1974, in which even
compassionate appointment is permissible based on a
reasonable criteria. Moreover, horizontal reservation has
been made for such Andolankaries and not the vertical one.
It does not eat the share of anyone else.

7) Needless to say that Andolankaries are not

adequately represented in the service under the State. No
quantifiable data seems to be required for the purpose at
this stage. It is confined to the initial appointment only and
has not been extended in the matters of promotion.
Executive power of State extends while issuing such
Government Order and formulating such Rules [Article
 7

162]. State is empowered to make rules regulating the

recruitment and the conditions of service of persons
appointed to public service in connection with the affairs of
State until the provision in this behalf is made by
appropriate legislature [Article 309]. The classification
distinguishes these Andolankaries, who are grouped
together, from others. The State has legislative competence
to formulate the same. Hence, the same cannot be termed
as unreasonable.

8) Hon’ble High Court of Judicature at Bombay,

Aurangabad Bench, in Writ Petition no. 5266 of 2008,
Rajendra Pandurang Pagare and another vs The State of
Maharashtra, relying upon Constitutional Bench of the
Apex Court in the case of Indra Sawhney and others vs
Union of India and others, 1992 Supp (3) SCC 217, has,
in para 18 of its judgment held as follows:
“18. It can thus be clearly seen that the Apex
Court has held that reservation for certain weaker
sections other than Scheduled Castes / Scheduled Tribes
and socially and economically backward classes may be
varied, viz., flood, earthquake, cyclone, fire, famine and
project affected persons, war and riot torn persons, etc.”

9) In Indra Sawhney’s case (supra), Hon’ble Apex

Court has observed thus:
“the instances of such weaker sections other than
Scheduled Castes / Scheduled Tribes and socially and
educationally backward classes may be varied, viz.,
flood, earthquake, cyclone, fire, famine and project
affected persons, war and riot torn persons, physically
 8

handicapped persons, those without any or adequate

means of livelihood, those who live below the poverty
line, slum dwellers etc. Hence, the expression ‘weaker
sections’ of the people is wider than the expression
‘backward class’ of citizens or ‘socially and
educationally backward classes’ and ‘Scheduled Castes /
Scheduled Tribes’. It connotes all sections of the society
who are rendered weaker due to various causes. Article
46 is aimed at promoting their educational and economic
interests and protecting them from social injustice and
exploitation. This obligation cast on the State is
consistent both with the Preamble as well as Article 38 of
the Constitution.”

10) The victims of Uttarakhand movement were

directed to be given compensation by the State in the past.
One Government Order relates to posts outside the
purview of Uttarakhand Public Service Commission,
that too only for Group ‘C’ and Group ‘D’ posts. In
fact, Government Order no. 1269 of 2004 was only
meant for one time employment on Group ‘C’ and ‘D’
posts only, outside the purview of State Public Service
Commission and does not exist any more. Government
Order no. 1270 of 2004 was also meant for specific
period for those who served imprisonment for less than
seven days. Rules framed on 20.05.2010 encompass
within its orbit only Group ‘C’ and Group ‘D’ posts,
outside the purview of Uttarakhand Public Service
Commission, for those who sustained injuries or who
served jail for seven days or more, as verified by
Competent Authority, according to their educational
 9

qualifications. This was done in supersession of earlier

order issued in this behalf. They were given one time
relaxation in direct recruitment. A deeming clause was
also there that those who were employed before
Notification of these Ruels, shall be deemed to have
been appointed under such Rules. Horizontal
reservation cuts across the vertical reservation and it is
also called interlocking reservation. Special
reservations are de hors the social reservations. It is for
the legislature / executive to evolve appropriate
methodology to give effect to the reservations and,
ordinarily, the courts do not interfere unless the action
is per se illegal or unconstitutional. Article 14 condemns
discrimination, but permits classification founded on
intelligible differentia having a rationale with the object
sought to be achieved. The government is legitimately
empowered to frame rules of classification for securing
the requisite standard and the classification need not
scientifically be perfect or logically complete.

11) In Rajendra Pandurang Pagare’s case (supra),

a Full Bench decision of Hon’ble Bombay High Court has
held that project affected persons can be appointed, but not
without advertising the posts, ignoring their qualifications
and merit. In the Government Orders and Rules under
challenge, the first Government Order has given one time
relaxation, that too only in Class III and Class IV posts
outside the purview of Uttarakhand Public Service
Commission and subsequent Government Order provides
for ten per cent horizontal reservation after adopting normal
 10

mode of recruitment, for a limited period. Rules supersede

earlier Government Orders. They relate only to
appointment on Group ‘C’ and Group ‘D’ posts outside the
purview of State Public Service Commission, according to
their educational qualifications. The verification was to be
done by Competent Authority on the basis of relevant
documents. Such Government Orders and Rules appear to
be outcome of well informed decision taken by the State
Government. It is learnt that DoPT, Government of India,
is even contemplating quota in Government jobs for acid
victims / persons with benchmark disabilities.

12) Needless to say that firing, lathi-charge was

resorted to on the Uttarakhand activists, who were
proceeding to Delhi and were pursuing peaceful
demonstration. The activists sustained grievous injuries,
some of them were so critical that they were awaiting their
death at various hospitals at Muzaffarnagar, Roorkee,
Dehradun and other places. More than 100 activists and
citizens, including women, sustained injuries. Many of the
activists even lost their lives. Khatima and Mussoorie
incidents are still hovering around in the minds of the
people, and, therefore, it is not illogical on the part of the
State Government to have issued impugned Government
Orders and Rules with a purpose, known to law.

13) We cannot deny the fact that the

Andolankaries, who have been identified did participate in
the movement for a separate State, they were recruited
under valid Government Orders / Rules and, therefore, a
great hardship will befall upon them and their families, in
 11

case, as a consequence of quashing of the Government

Orders and Rules (to which I respectfully disagree), such
persons are removed from service. It is, not in dispute, that
those persons had all the qualifications required for the
posts on which they were appointed. It is a different thing
if such facility of employment / reservation for
Andolankaries may not be done for future, unlike freedom
fighters whose second and third generations are getting
benefit of reservation and, therefore, I leave it to the
wisdom of the State, whether to exercise such discretion for
future or not. No interference should, therefore, be called
for in the appointments given in the past, which will
include present recruitment exercise considering the human
element and hardship.

14) I, therefore, in all humility, respectfully

disagree with my learned senior brother and hold that the
benefit of such horizontal reservation / employment can be
granted to Andolankaries in public service.

15) I, therefore, hold that the Government Orders

and Rules under challenge in present P.I.L. are not violative
of any of the provisions of the Constitution of India. No
interference is, therefore, called for in the same.

(U.C. Dhyani, J.)

23.06.2017

Negi
12
13
14