Others v. State Of U.P. And
Case Details
1 RESERVED ON: 23.12.2021 DELIVERED ON: 5.3.2022 Court No. 46 A.F.R. IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD CIVIL MISC. WRIT (A) PETITION No. 4817 of 2020 Sudhir Singh And 2 Others Vs. State Of U.P. And 4 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,Purnendu Kumar Singh, Satish Kumar Rai, Siddharth Singhal Connected with CIVIL MISC. WRIT (A) PETITION No. 4856 of 2020 Virendra Kumar Vs. State Of U.P. And 3 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Siddharth Singhal And CIVIL MISC. WRIT (A) PETITION No. 14831 of 2020 Sunil Kumar Singh Vs. The Uttar Pradesh Secondary Education Services Selection Board And Another Counsel for Petitioner :- Adarsh Singh, Indra Raj Singh Counsel for Respondent :- Anil Kumar Singh, C.S.C. 2 JUDGMENT Contents Exordium ………………………………………………………..….3 Relevant Statutory Enactments / Order ………………………....12 Argument of Petitioner (Suitors)………………………………….17 Arguments of Respondents / Answerers ………………………....22 Replication of the Petitioners/ Suitors …………………….…...…24 Questions of Determination ………………...………………..……24 Discussions ………………………………………..……………..…24 Summation ……………………………………………..……..……59 Conclusion …………………………………………..………..…….60 Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vikas Budhwar,J. (Delivered by Hon’ble Vikas Budhwar, J.) Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Seemant Singh, learned counsel for the petitioners in Writ Petition No.4817 of 2020, (Sudhir and two others Vs. State of U.P. & 6 others) (Group-I) as well as Sri Navin Kumar Sharma in Writ Petition No.4856 of 2020, (Virendra Kumar Vs. State of U.P. and others) (Group-II) and Sri Indra Raj Singh in Writ Petition No.14831 of 2020, (Sunil Kumar Singh Vs. U.P. Secondary Education Services Selection Board) (Group-III), as well as Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel for the State-respondents, Sri Shashi Prakash Singh, Addl. Solicitor General assisted by Sri Purnendu Kumar Singh, learned counsel for Union of India as well as Sri Siddharth Singhal, who appears for Uttar Pradesh Subordinate Services Selection Commission. EXORDIUM 3 2. Seemingly the pivotal question involved in cluster of petitions which need to be addressed is as to whether the petitioners qualify the definition of Section 2(c) “Ex. Servicemen” as provided under the U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters And Ex-Servicemen) Act, 1993 (In short ‘the Act 1993’) and enjoy desirable qualifications on the last date of submission of the application form stipulated in the Advertisement no.3 Examination/2016 for Village Development Officers (General Selections. 2016) (hereinafter referred to as Advertisement). In order to arithmetically simplify the factual status of the writ petitions qua the petitioners, the above noted writ petitions are being classified into groups. Group Petitioner I II III 1 2 3 1 1 Date of obtaining C.C.C. Certificates in computer application issued by DOEACC now NIELIT 2017 March, 2016 NIL April, 2016 NIL Date of retirement 31.7.2016 30.11.2016 29.2.2016 1.1.2016 30.4.2017 3. With the consent of the parties, (Group-I) Writ-A No.4817 of 2020 (Sudhir Singh and two others Vs. State of U.P. and six others) is being treated as a leading petition. However, for the sake of clarity, the reliefs sought therein, are being reproduced herein under :- “(a) Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and quashing the impugned termination orders dated 05.05.2020 passed by the Direct Development Officer, Badaun in reference to petitioner No.1 and petitioner No.2 and impugned termination order dated 28.04.2020 passed by District Development Officer, Balrampur in reference to petitioner No.3 whereby the services of the petitioners on the post of Village Development Officer have been dispensed with treating their appointments as void. (b) Issue a writ, order or direction in the nature of Mandamus directing the respondents to reinstate the petitioners on the post of Village 4 Development Officer in their respective districts with all consequential benefits. (c) Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (d) Award the cost of the writ petition to the writ Petitioners.” 4. In Writ Petition No.4817 of 2020 (Sudhir Singh and two others Vs. State of U.P. and six others), consequent to the order dated 7.9.2021 passed by this Court in the above writ petition, following reliefs were added:- “(e) Issue a writ, order or direction in the nature of Mandamus declaring Rule 2(c) of the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex- Servicemen) Act, 1993 to be ultra vires to Articles 14 & 16 of the Constitution of India.” 5. In (Group-II) Writ Petition No.4856 of 2020, (Virendra Kumar Vs. State of U.P. and three others), reliefs sought are being reproduced hereinunder:- “(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.02.2020 and 12.03.2020 passed by respondent no.2 and 3 respectively (Annexure-1, 2 and 3 to the writ petition). (ii) issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioners to work on the post of Village Development Officer in District Shahjahanpur and pay the salary of petitioners as and when it is admissible to them. (iii) issue a suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iv) To award the costs of the petition to the petitioner.” 6. In (Group-III) Writ Petition No.14831 of 2020 (Sunil Kumar Singh Vs. U.P. Secondary Education Services Selection Board, Prayagraj through its Secretary), following reliefs were made:- “I. Issue a writ, order or direction in the nature of Mandamus, commanding the respondents particularly respondent no.1-The Uttar Pradesh Secondary Education Services Selection Board, Prayagraj through its Secretary to consider the candidature of the petitioner for selection and appointment as ex-serviceman on the post of Assistant Teacher in Trained Graduate Grade against the advertisement no.01/2016 within stipulated time as may be fixed by this Hon'ble Court. II. Issue any other writ, order or direction in the nature of writs, as this Hon'ble Court may deem fit and proper to meet ends of justice. III. Award cost to the petitioner.” 7. As common questions are involved in the aforesaid writ petitions which are three in number, thus they are being compositely decided. 5 8. Factual matrix as worded in the leading writ petition are that an advertisement was published by Uttar Pradesh Subordinate Service Selection Commission (hereinafter referred to as Commission) for the filling up the post of Village Development Officer (General Category) in the year 2016 being Advertisement No.3/Examination/2016 wherein it was intended that as many as 3133 posts were to be filled. The relevant dates which are germane to the controversy in question are recapitulated herein under in the form of tabulation chart:- Sl. No. Event i ii iii iv v Commencement of the date for registration on line for filing of application Commencement of the date for deposit of the fees on line Last date of registration for examination Last date of deposit of fees online Last date of submission of application Date 18.1.2016 20.1.2016 6.2.2016 8.2.2016 10.2.2016 9. Clause-7 of the advertisement providing for the description/detail as well as reservation for various categories is being reproduced hereinunder:- foHkkx dk uke in dze la0 in dk uke osru cSUM@osrueku @xszM is 01 tqykbZ 2016 dh vk;q ¼U;wure vf/kdre o"kksZ esa½ inksa dh la[;k vukjf{kr vuwlwfp r tkfr vuwlwfpr tkfr inksa dh izd`fr dqy in vU; fiNM+k oxZ 1& vk;qDr] xzkE; fodkl foHkkx] mRrj izns'k] y[kuÅ xzke fodkl vf/kdkjh :0 5200&20200 @xszM is&2000@& 18&40 1836 612 74 611 3133 ZLFkk;h 10. Clause-8 of the advertisement providing for essential eligibility (qualification) is as under :- in dzekad 1& in uke xzke fodkl vf/kdkjh vfuok;Z vgZrk@vf/kekuh vgZrk ¼1½&foKku ;k d`f"k ds lkFk ek/;fed f'k{kk ifj"kn] mRrj izns'k dh baVjehfM,V ijh{kk ;k jkT;iky }kjk mlds led{k ekU;rk izkIr dksbZ ijh{kk mRrh.kZ dh gksA” ¼2½&dEI;wVj lapkyu esa lh0lh0lh0 izek.k i= dh vgZrkA 6 11. Clause-10 of the advertisement providing for age limit is also reproduced herein under :- “vk;q lhek%&vk;q x.kuk dh fu'pk;d frfFk 01 tqykbZ 2016 gSA fnukad 01-07-2016 dks vH;FkhZ dh vk;q in ds lEeq[k vafdr vk;q lhek 18 o"kZ ds e/; gksuk pkfg, vFkkZr vH;FkhZ us 01 tqykbZ 2016 ¼01&07&2016½ dks 18 o"kZ dh vk;q vo'; izkIr dj yh gks vkSj 40 o"kZ ls vf/kd vk;q izkIr u dh gks vFkkZr mldk tUe 02 tqykbZ 1976 ls iwoZ rFkk 01 tqykbZ 1988 ds ckn u gqvk gksA ¼1½&vuqlwfpr tkfr] vuqlwfpr tu tkfr] vU; fiNM+k oxZ vkSj ,slh vU; Js.kh] ds vH;fFkZ;ksa dh n'k esa mPprj vk;q lhek mrus o"kZ vf/kd gksxkh ftruh ljdkj }kjk fofufnZ"V gksA 'kklukns'k fnukad 28-11-1985 ds vuqlkj oxhZd`r [ksyksa ds dq'ky f[kykfM-;ksa dks 5 o"kZ dh NwV vuqeU; gksxhA HkwriwoZ lSfudksa ds fy, vf/kdre vk;q lhek esa 03 o"kZ dh NwV 01 tqykbZ 2016 dks bl 'krZ ds lkFk vuqeU; gksxh fd mudh lEiw.kZ lsok vof/k dks mudh okLrfod vk;q esa ls ?kVk dj ifj.kkeLo:i 'ks"k vk;q fu/kkZfjr vk;q ls 03 o"kZ ls vf/kd u gksA vkosnu dh vafre frfFk rd lsuk ls eqDr gksuk vfuok;Z gSA ¼2½&lekt ds fodykaxtuksa dks mRrj izns'k ljdkj ds v|ru] uohure fo|eku 'kklukns'k fnukad 03 Qjojh] 2008 ds vuqlkj vf/kdrd vk;q lhek esa 15 o"kZ dh NwV vuqeU; gksxhA” 12. For the sake of clarity the provisions pertaining to reservation for selection as well as other conditions as stands applicable to the applicants as provided in Clause (9), (13) and 14) are being recapitulated herein under:- “(9) tks vH;FkhZ dsanz ;k jkT; ljdkj dh lsok esa lsokjr gSa] os vius lsok;kstd ls vukifRr izek.k i= izkIr dj ysa ftls ekaxs tkus ij vk;ksx dks izLrqr djuk gksxk] izkjEHk esa vukifRr izek.k i= vko';d ugha gS] ijarq bl vk/kkj ij foyac ls izkIr vkosnu i=ksa dks dkyckf/kr ekuk tk,xkA (13) Pk;fur efgykvksa] m0iz0 Loar=rk laxzke lsukuh ds vkfJr 7 HkwriwoZ lSfudksa rFkk fodykaxtu dks (dsoy fpfUgr inkas ds lkis{k dksVk cuus ij) vkj{k.k vf/kfu;e 1993 ;Fkk la’kksf/kr esa fo|eku fu;ekuqlkj mu Jsf.k;ksa esa j[kk tk,xk] ftuls os lacfU/kr gSaA (14) vuqlwfpr tkfr] vuqlwfpr tutkfr] vU; fiNM+k oxZ] Lora=rk laxzke lsukuh ds vkfJr efgyk vH;fFkZ;ksa] HkwriwoZ lSfudksa rFkk fodykaxtu dks tks mRrj izns’k ds ewy fuoklh ugha gSa] mUgsa vkj{k.k dk ykHk vuqeU; ugha gSa] ,sls vH;FkhZ vukjf{kr (lkekU;)
Facts
Js.kh ds ekus tk;saxsA efgyk vH;fFkZ;ksa ds ekeys esa firk i{k ls fuxZr izek.k&i= dh ekU; gksxkA” 13. General conditions so mentioned Clause I are also being quoted herein under:- “I) LAST DATE FOR RECEIPT OF APPLICATION:On-line- Application process must be completed (including filling up of Part-I, Part-II and Part-III of the Form) before last date of form submission according to Advertisement, after which the web-link will be disabled.” 14. Pleadings so set forth in the leading petition being (Sudhir Singh and two others Vs. State of U.P. and six others) (Group-I) reveal that there are three petitioners therein and so far as the petitioner no.1 is concerned he applied in pursuance of the above noted advertisement claiming himself to be an ex-servicemen while being employed with the Indian Army Rank LME No.129651M on 27.7.2001, on the strength of no objection certificate issued by Commander SSO (ADMIN) (AOD) for Commodore, Bureau of Sailors Sion-Trombay Road, Mankhurd, Mumbai-400 088 mentioning therein that the petitioner no.1 was to be released from Indian Navy on 31.7.2016. 15. Similarly, the petitioner no.2, in order to establish that he is an ex- serviceman also produced before the Commission, a no objection certificate issued by AIR Commander dated 19.12.2015 claiming that he is an ex-serviceman having been employed in Air-Force on the post as Sergeant having Service No.775830-N and his date of enrollment in Indian Air force is 18.11.1996. 16. Petitioner No.3 has also submitted no objection certificate before the Commission certifying him to be in Indian Navy in the rank of PORTAC No.129257T from the date 2.2.2001 and the date of relieving being 29.2.2016. 8 17. As per the pleadings, selections were conducted pursuant whereof the petitioners herein were finally selected for the post of Village Development Officer (In short V.D.O.) vide notification dated 18.7.2018 wherein total 70 candidates belonging to ex-servicemen quota inclusive of the petitioners were shown to have cleared the selection. However, on the same date i.e. 18.7.2018, the roll number so assigned to the petitioners were included in the list of the candidates whose results were withheld being Roll No.00106028 of petitioner Roll No.00134474, petitioner no.2 and Roll No.00214143 of petitioner no.3. A note was appended that withholding of the 70 candidates including the petitioners were on account of the fact that they did not possess the minimum educational qualifications and accordingly the matter was referred to the State Government. 18. It has also come on record that by virtue of a notice dated 14.12.2018, 70 candidates whose results have been withheld were required to appear before the Commission on 26.12.2018 at 10.30 a.m. along with papers relating to their educational qualification which obviously included the names of petitioners. 19. Thereafter, on 20.12.2018 the Commission issued another notice requiring 70 candidates including the petitioners to appear on 26.12.2018 before it along with necessary documents pertaining to their qualifications for considering the same in order to find out as to whether the qualification possessed by the petitioners was equivalent to the Course of Computer Concept (hereinafter referred to CCC) certificate so issued by DOEACC now NIELIT in the light of the letter dated 5.7.2018 issued by Additional Chief Secretary U.P. Government Lucknow, addressed to all Additional Chief Secretary/Secretary U.P. Government. 9 20. The petitioners claim that they produced all relevant documents pertaining to their educational qualifications and thereafter on 7.2.2019 recommendation was made by the Commission in favour of the petitioners for appointment on the post of VDO addressed to the Commissioner Rural Development, U.P. Lucknow, who in turn, issued an order dated 13.2.2019 addressed to District Development Officers, Budaun, Kasganj, Shahjahanpur, Siddharth Nagar, Balrampur and Lakhimpur Kheri mentioning therein that so far as the petitioner no.1 and 2 are concerned, they were allotted district Budaun and petitioner no.3 district Balrampur for being sent for training for a period of 15 days. The petitioners consequently, completed their training and on 19.3.2019 Principal, Regional Village Development Institutes certified that the petitioners had completed their training successfully. 21. Eventually, appointment orders were issued on 29.5.2019 and 27.5.2019 appointing the petitioners on the post of V.D.O. on temporary basis in the pay band 5200-20200 Grade Pay 2000. However, on 19.2.2020 a show cause notice was issued under the signature of respondent no.3 addressed to the petitioner no.1 show causing him as to why the appointment so sought to be made on the post of V.D.O. be held to be nullity as on the last date of submission of the application form so provided in the advertisement in question being 10.2.2016, he was already employed with the Indian Navy and thus he could not be treated to be an ex-serviceman and further on the last date of submission of the application form, he was also not possessing the C.C.C. certificate awarded by DOEACC now NIELIT. 22. Notice, in similar fashion, was also issued by the respondent no.3 to petitioner no.2 on 19.2.2020. Petitioner no.3 also received notice on 12.2.2020 containing the said objections. It has also come on record that the said notices were replied by petitioners on 2.3.2020. 23. On 5.5.2020 and 28.4.2020, the orders impugned have been passed by respondent nos. 3 and 4; respectively, declaring the appointments of the petitioners to be null and void, as they were shown to be not qualifying the status of ex-servicemen on the last date of submission of application form and further not possessing the certificate of CCC either awarded by DOEACC now NIELIT. 10 24. In relation to Group-II petition, instituted by Virendra Kumar, his appointment was also declared to be null and void by the Commissioner, Village Development, Lucknow on 11.2.2020 and on 12.3.2020 by the
Legal Reasoning
As observed by this Court in CST v. Radhakrishnan in 84. considering the validity of a Statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of 27 constitutional principles. For sustaining the constitutionality of an Act, a Court may take into consideration matters of common knowledge, reports, preamble, history of the times, objection of the legislation and all other facts which are relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. It is also well- settled that the courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. A provision conferring very wide and expansive powers on authority can be construed in conformity with legislative intent of exercise of power within constitutional limitations. Where a Statute is silent or is inarticulate, the Court would attempt to transmutate the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles have given rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law.” 64. In Zaheer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra and others, JT 2010(4) SCC 256 in paragraph 34 and 35, the Supreme Court has held as under: - “34. It is a well-established rule of interpretation that the entries in the List being fields of legislation must receive liberal construction inspired by a broad and generous spirit and not a narrow or pedantic approach. Each general word should extend to all ancillary and subsidiary matters which can fairly and reasonably be comprehended within it. [Reference in this regard may be made to the decisions of this Court in Navinchandra Mafatlal v. Commr. of I.T. [AIR 1955 SC 58], State of Maharashtra v. Bharat Shanti lal Shah [(2008) 13 SCC 5]]. It is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State Legislature [Reference may be made to the cases of: Charanjit Lal Choudhary v. Union of India [AIR 1951 SC 41], T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], Karnataka Bank Ltd. State of AP [(2008) 2 SCC 254]] 35. One of the proven methods of examining the legislative competence of a legislature with regard to an enactment is by the application of the doctrine of pith and substance. This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true 28 character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme. This doctrine is an established principle of law in India recognized not only by this Court, but also by various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List.” 65. In Namit Sharma Vs. Union of India, 2013(1) SCC 745, in paragraph 51 and 61, the Supreme Court has held as under: - “51. Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of ‘reading down’ or ‘reading into’ the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this court in its various pronouncements. It is a settled principle of law, as stated earlier, that 61. courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like ‘reading into’ and/or ‘reading down’ the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective.” 66. Another additional aspect needs to be further noticed at this juncture that though the earlier law was to the effect that the Constitutional validity of Act can be challenged only on two grounds namely (I), lack of legislative competence and (ii) violation of any of the fundamental rights 29 guaranteed in Part-III of the Constitution. However, the exception to the said Rule has been noticed in the case of Shayara Bano Vs. Union of India, 2017 (9) SCC 1, wherein a third exception was carved out with regard to the fact that the Courts of law can even hold the statutory enactment to be ultra vires, where there is “manifest arbitrariness. The Hon’ble Apex Court in its majority opinion 3:2 has held in paragraphs-87, 88, 89, 90 and 101 as under: - “87. The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges’ Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution. 88. We only need to point out that even after McDowell (supra), this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1, this Court held that after passage of time, a law can become arbitrary, and, therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paragraphs 8 to 15 and 31). 89. Similarly in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. etc. etc., (2004) 4 SCC 311 at 354, this Court struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, as follows: “64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that: (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii) there is no determination of the amount due as yet, (iii) the secured assets or their management with transferable interest is already taken over and under control of the secured creditor, (iv) no special reason for double security in respect of an amount yet to be determined and settled, (v) 75% of the amount claimed by no means would be a meagre amount, and (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions 30 are not only onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution. 90. In two other fairly recent judgments namely State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737 at paragraphs 50 to 53, and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy (2011) 9 SCC 286 at paragraph 29, this Court reiterated the position of law that a legislation can be struck down on the ground that it is arbitrary and therefore violative of Article 14 of the Constitution. 101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.” 67. Recently, in one of the decisions in the case of K.S. Puttaswamy (Aadhar) Vs. Union of India, reported in 2019 (1) SCC 1 in paragraphs 103, 104 and 105 has held as under: - “103. In support of the aforesaid proposition that an Act of the Parliament can be invalidated only on the aforesaid two grounds, passages from various judgments were extracted 21. The Court also noted the observations from State of A.P. & Ors. v. MCDOWELL & Co. & Ors.22 wherein it was held that apart from the aforesaid two grounds, no third ground is available to validate any piece of legislation. In the process, it was further noted that in Rajbala & Ors. v. State of Haryana & Ors.23 (which followed MCDOWELL & Co. case), the Court held that a legislation cannot be declared unconstitutional on the ground that it is ‘arbitrary’ inasmuch as examining as to whether a particular Act is arbitrary or not implies a value judgment and courts do not examine the wisdom of legislative choices, and, therefore, cannot undertake this exercise. 104. The issue whether law can be declared unconstitutional on the ground of arbitrariness has received the attention of this Court in a Constitution Bench judgment in the case of Shayara Bano v. Union of India & Ors.24. R.F. Nariman and U.U. Lalit, 31 India JJ. 21 State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Ashoka , (2008) 6 SCC 1 22 (1996) 3 SCC Kumar Thakur v. Union of 709 23 (2016) 2 SCC 445 24 (2017) 9 SCC 1 discredited the ratio of the aforesaid judgments wherein the Court had held that a law cannot be declared unconstitutional on the ground that it is arbitrary. The Judges pointed out the larger Bench judgment in the case of Dr. K.R. Lakshmanan v. State of T.N. & Anr.25 and Maneka Gandhi v. Union of India & Anr.26 where ‘manifest arbitrariness’ is recognised as the third ground on which the legislative Act can be invalidated. Following discussion in this behalf is worthy of note: “87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution. 88. We only need to point out that even after McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] , this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v. State of Maharashtra [Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1] , this Court held that after passage of time, a law can become arbitrary, and, 25 (1996) 2 SCC 226 26 (1978) 1 SCC 248 therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paras 8 to 15 and 31). xx xx xx 99. However, in State of Bihar v. Bihar Distillery Ltd. [State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at para 22, in State of M.P. v. Rakesh Kohli [State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481], SCC at paras 17 to 19, in Rajbala v. State of Haryana [Rajbala v. State of Haryana, (2016) 2 SCC 445], SCC at paras 53 to 65 and in Binoy Viswam v. Union of India [Binoy Viswam v. Union of India, (2017) 7 SCC 59], SCC at paras 80 to 82, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] was read as being an absolute bar to the use of “arbitrariness” as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, 32
Arguments
District Development Officer, Shahjahanpur on the ground that Sri Virendra Kumar did not qualify the definition of ex-servicemen on the last date of submission of application form and he did not possess the CCC certificate issued by DOEACC now NIELIT on the last date of submission of application form itself. 25. In Group-III petition, so instituted by Sri Sunil Kumar Singh, the Court finds that there is no order declaring the selection of the petitioners therein to be null and void, but this much has been prayed that the commission be directed to consider the candidature of the petitioner for selection and appointment as ex-servicemen in pursuance of the advertisement in question. 26. Petitioners in the leading writ petition had annexed as Annexure-20 being the notification pertaining to selection on the post of Constable, Civil Police and Constable, PAC, Direct Recruitment, 2018 issued by Uttar Pradesh Police Recruitment and Promotion Board Lucknow, wherein a specific clause has been inserted being Clause 5.6 relatable to Ex- Servicemen of the Defence, wherein it has been mentioned that though ex- defence personnel would be eligible, who are either ex-servicemen on the last date of submission of the application form or they are able to establish that they would be ex-servicemen after applying before one year of their actual discharge. Noticing the said fact, this Court passed an order dated 13.10.2020 requiring the respondents to file an affidavit with regard to the eligibility criteria for appointment of ex-servicemen in various State services as recommended by Government Orders/Circulars of Ministry of 11 Defence, Director General (Resettlement) indicating also whether persons in service, who will be discharged within a period of one year are entitled to apply for appointment in various services and also apprise the Court as to why the criteria for appointment as ex-servicemen is not uniform in various department in State of Uttar Pradesh. On 12.2.2021, an affidavit was filed by Addl. Chief Secretary, Department of Rural Development, Uttar Pradesh, Lucknow, wherein reference had been made to a letter dated 9.2.2021 issued by Joint Secretary Uttar Pradesh Shashan addressed to Commissioner, Department of Rural Development, Government of Uttar Pradesh providing this much that the provisions contained in Section 2 (c) of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependent of Freedom Fighters and Ex-Servicement) Act, 1993 applies in State services, which provide 5% reservation for Ex- Serviceman in Services under the State. The said affidavit was found to be unsatisfactory and accordingly, on 17.2.2021, the respondents were directed to file better affidavit. 27. Thereafter, on 1.3.2021/20.3.2021, a counter affidavit has been filed on behalf of the respondent nos. 1 to 4 in the leading writ petition giving reference in paragraph-3 of the same, while appending a letter dated 25.2.2021 issued by Addl. Secretary, Recruitment, Uttar Pradesh Police Recruitment and Promotion Board, Lucknow addressed to Joint Secretary, Village Development Anubhag-3, mentioning therein that Clause-5.6 of the advertisement dated 16.11.2018 issued by Uttar Pradesh Police Recruitment and Promotion Board, Lucknow for Selection of Constable, Civil Police and Constable PAC Direct Recruitment 2018 was with reference to the office memorandum issued by Ministry of Personnel and Public Grievance and Pension Department of Personnel and Training dated 3.4.2021 wherein it has been provided that it is expected from the applicant so applying in pursuance of the said notification should possess necessary eligibility and documents to prove the same on the last date of submission of the application form. On the question of eligibility referable to qualification which is to be possessed by the applicants on the last date of submission of application form in the selection for the post of V.D.O, 12 reference was made to the order dated 5.7.2018 issued by Addl. Chief Secretary addressed to all Addl. Chief Secretary/ Principal Secretary/ Secretary, U.P. Government laying down the condition of equivalence qua CCC certificate in computer application issued by DOEACC now NIELIT providing further that an applicant having higher qualification like, B.A, B.Sc, B-Tech, M.Sc. and M.B.A. and having studied computer as a subject or having a computer course in semester would be treated to be eligible for selection, coupled with the fact that though, the selection was of the year 2016 and last date for submission of application was 10.2.2016 but the order dated 5.7.2018 is prospective in operation and will not apply in the selections conducted prior to it. 28. To the said pleadings, a rejoinder affidavit has been filed by the petitioners dated 25.3.2021, disputing the aforesaid averments and the allegations so contained in the said counter affidavit. Supplementary Counter Affidavit has also been filed annexing certain notifications and reiterating the stands so taken in the counter affidavit filed by them. RELEVANT STATUTORY ENACTMENTS/ ORDERS 29. The relevant extract of the Uttar Pradesh Services (Reservation for physically handicapped, dependents of freedom fighters and Ex- Servicemen) Act, 1993 (the Act 1993) is quoted hereinunder: “The U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex- Servicemen) Act, 1993 (U.P. Act No. 4 of 1993) Last Updated 30th March, 2021 [up106] [December 29,1993 (As passed by the U.P. Legislature) Received the assent of the President on 29.12.1993, and Published in the U.P. Gazette, Extraordinary, Part I, (Ka), dated 30.12.1993. An Act to provide for the reservation of posts in favour of physically handicapped, dependents of freedom-fighters and ex-servicemen and for matters connected therewith or incidental thereto. It is hereby enacted in the Forty-fourth year of the Republic of India as follows : 1. Short title and commencement. - (1) This Act may be called the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen), Act, 1993. (2) It shall be deemed to have come into force on December 11,1993. 13 2. Definitions. -In this Act - (a)… (b)... (c)"ex-serviceman"means a person who has served in any rank, as combatant or non-combatant, in the Indian Army, Navy or Air Force, and - (i) has retired from such service after earning his pension, or (ii) has been released from such service on medical grounds, in accordance with the requirements of such service, or because of circumstances beyond his control and has been granted medical or disability pension, or (iii) has been released, otherwise than on his own request, as a consequence of reduction in the establishment of such service, or (iv) has been released from such service after a fixed specific period, but has not been released on his own request or has not been dismissed or, discharged on account of misconduct or inefficiency and has been granted gratuity; and includes the following categories of territorial Army personnel who - (i) get pension for continuous embodied service, (ii) have become medically unfit owing to military service, and (iii) are winners of gallantry award ... 30. Relevant extract of The Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules (1st notification), 1979 is quoted hereinunder: “(c) “ex-serviceman’ means a person, who has served in any rank (whether as a combatant or as non combatant), in the Armed Forces of the Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles, Defence Security Crops, General Reserve Engineering Force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation, and (i) has been released, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency, or has been transferred to the reserve pending such release, or (ii) has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid; or (iii) has been released at his own request, after completing five years service in the Armed Forces of the Union; 3. Application. These rules shall apply to all the Central Civil Services and Posts. Group ‘C’ and Group ‘D’ and the posts of the level of Assistant Commandant in all paramilitary forces.” 31. Relevant extract of The Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 (2nd notification dated 27.10.1986), is quoted hereinunder: 14 “2. (c) “ex-serviceman’ means a person, -who has served in any rank (whether as a combatant or as a non-combatant), in the Regular Army, Navy and Air Force of the Indian Union, but does not include a person who has served in the Defence Security Crops, the General Reserve Engineering Force, the Lok Sahayak Sena and the para military forces; and who has retired from such service after earning (i) his/ her pension; or (ii) Who has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (iii) Who has been released, otherwise than on his own request, from such service as a result of reduction in establishment; or (iv) who has been released from such service afer completing the period of engagement, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency, and has been given a gratuity; and includes personnnel of the Terriotrial Army of the following categories, namely; (I) pension holders for continuous embodied service; (ii) persons with disability attributable to military service; and (iii) gallantry award winners. Explanation : The persons serving in the Armed Forces of the Union, who on retirement from service, would come under the category of ‘ex-servicemen’, may be permitted to apply for re employment one year before the completion of the specified term of engagement and avail themselves of all concessions available to ex-servicemen but shall not be permitted to leave the uniform until they complete the specified term of engagement in the Armed Forces of the Union.” 32. Relevant extract of The Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 (3rd notification dated 27.3.1987), is quoted herinunder: “2. (c) the following proviso shall be added, namely; Provided that for the period commencing on the 15th day of November, 1986 and ending with the 30th day of June, 1987, any 15 person who has been released; (a) at his own request after completing 5 years service in the Armed Forces of the Union; or (b) after serving for a continuous period of six months after attestation, otherwise than at his own request or by way of dismissal or discharge on account of mis-conduct or inefficiency or has been transferred to the reserve pending such release; shall also deemed to be an ex-serviceman for the purposes of this clause.” 33. Relevant extract of The Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 (4th Notification dated 04.10.2012), is quoted herinunder: In the Ex-servicemen (Re-employment in Central Civil “2. Services and Posts) Rules, 1979 (I) in rule 2, for clause (c), the following clause shall be substituted, namely:- (c) An “ex-serviceman’ means a person - (i) who has served in any rank whether as a combatant or non- combatant in the Regular Army, Navy and Air Force of the Indian Union, and (a) who either has been retired or relieved or discharged from such service whether at his own request or being relieved by the employer after earning his or her pension; or (b) who has been relieved from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (c) who has been released from such service as a result of reduction in establishment; Or (ii) who has been released from such service after completing the period of engagement, otherwise than at his own request, or by way of dismissal, or discharge on account of misconduct or inefficiency, and has been given a gratuity; and includes personnel of the Territorial Army, namely, pension holders for continuous embodied service or broken spells of qualifying service; Or (ii) personnel of the Army Postal Service who are part of Regular Army and retired from the Army Postal Service without reversion to their parent service with pension, or are released from the Army Postal service on medical grounds attributable to or aggravated by Military service or circumstance beyond their control and awarded medical or other disability pension; Or 16 (iv) Personnel, who were on deputation in Army Postal Service for more than six months prior to the 14th April 1987; Or (v) Gallantry award winners of the Armed forces including personnel of Territorial Army; Or (vi) Ex-recruits boarded out or relieved on medical ground and granted medical disability pension.” 34. Office Memorandum dated 3.4.1991 No.36034/2/91 Estt (SCT) Ministry of Personnel and Public Grievances and Pension Department of Personnel Training containing the subject “Form of Undertaking to furnish for Armed Personnel applying for Civil Post under Ex-Servicemen category”, “Compendium On Reservation Concession And Relaxation For Ex-Serviceman In Central Government Services” is as under: - “2. Definition of Ex-servicemen The Ex-servicemen (Re-employment in Central Services and Posts) Rules, 1979, as amended from time to time, defines an ex-servicemen as a person - (i) who has served in any rank whether as combatant or non-combatant in a Regular Army, Navy and Air Force of the Indian Union, and (a) who either has been retired or relieved or discharged from such service whether at his own request or being relieved by the employer after earning his or her pension; or (b) who has been relienied from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (c) who has been released from such service as a result of reduction in establishment; (ii) who has been released from such service after completing the specific period of engagement, otherwise than at his own request, or by way of dismissal, or discharge on account of misconduct or inefficiency and has been given a gratuity; and includes personnel of the Territorial Army, namely, pension holders for continuous embodied service or broken spells of qualifying service; Or (iii) personnel of Army Postal Service who are part of Regular Army and retired from the Army Postal Service without reversion to their parent service with pension, or are released from the Army Postal service on medical grounds attributable to or aggravated by military service or circumstances beyond their control and awarded medical or other disability pension; Or (iv) Personnel, who were on deputation in Army Postal Service for more than six months prior to 14thApril, 1987; Or (v) Gallantry award winners of the Armed Forces including personnel of Territorial Army; Or (vi) Ex-recruits boarded out or relieved on medical ground and granted medical disability pension. 3. Application of Ex-servicemen Rules These rules shall apply to all the Central Civil Services and posts of Group C and Group D and the posts upto the level of Assistant Commandant in all para-military forces. Para military forces mean the Border Security Force, Central Reserve Police Force, Indo-Tibetan Border Police, Central Industrial Security Force, Secretariat Security Force, Assam Rifles and Railway Protection Force.” ARGUMENT OF PETITIONERS (SUITORS) 17 35. Sri Ashok Khare, learned Senior Counsel assisted by Sri Seemant Singh in the leading Writ Petition (Group I) has made manifold submissions namely: A- Section 2(c) of the 1993 Act is ultra vires of Articles 14 and 16 of the Constitution of India, inasmuch as it creates artificial classification having no nexus with the object sought to be achieved in the matter of restricting the claim of the petitioners with respect to an illegal condition that petitioners should be discharged/ retired on the last date of submission of the application forms. B- Uniform yardstick has not been adhered to by the respondents as in the case of recruitment on the post of Constable (Civil Police) and Constable (PAC) Direct Recruitment 2018, pursuant to the advertisement published on 16.11.2018 issued by Uttar Pradesh Police Recruitment and Promotion Board, Lucknow, the applicants therein were also allowed to apply for the said recruitment despite the fact that they were to be discharged post last date of submission of application forms within a period of one year. C- Once the application form so submitted by the petitioners accompanied with no objection certificate was available with the respondents and the same was taken into account while subjecting the petitioners for selection, then the respondents cannot turn around and allege that the appointment of the petitioners was illegal. D- So far as the issue of eligibility relatable to minimum educational qualification is concerned, the petitioners are fully eligible, though they did not possess CCC certificate awarded by DOAECC renamed as NEILET on the last date of submission of application form, but in view of 18 the order dated 5.7.2018 providing that in case an applicant has higher qualification like B.A, B.Sc, B-Tech, M.Sc. and M.B.A. and studied computer as a subject or having a computer course in a semester would be treated to be eligible while granting equivalence, which has even been taken into note of while directing the petitioners to furnish their educational qualification and thereafter they had been offered appointment. 36. Elaborating the first submission, learned Senior Counsel has sought to argue that very insertion of Section 2(c) of 1993 Act containing a condition that in order to qualify to be an ex-serviceman, an applicant has to retire / discharge / relieve, is itself violative of Article 14 and 16 of the Constitution of India as the very purpose of grant of reservation to the extent of 5% itself stands redundant as the crucial date which is to be seen in the light of the aforesaid statutory provision granting reservation to ex- serviceman is the date of grant of appointment and any date not anterior to it as the petitioners herein were to retire within a short span of period from the last date of submission of application form, 37. Learned Senior Counsel in order to further buttress his argument has also referred to second notification dated 27.10.1986 so as to contend that the person serving in Armed Forces of Union who are retired/ discharged/ relieved from service would come under the category of ex-servicemen and are to be permitted to apply for re-employment one year before the completion of the specific term of engagement and avail themselves to all concession available to ex-servicemen. 38. In nutshell, the argument of learned counsel for the petitioners is to the extent that in case Section 2(c) of the 1993 Act is allowed to operate and exist on statute book then the very object of enactment of the second notification dated 27.10.1986 will become redundant. 39. According to the learned Senior Counsel though Section 2(c) of the 1993 Act provides for the definition of ex-servicemen but it has to be read in-conformity and consonance with the provisions contained under the second notification dated 27.10.1986. 19 40. Learned Senior Counsel has next sought to argue that Seventh Schedule under Article 246 of the Constitution of India, Entry no.4 in list I deals with Naval/Military and Air Force Works . Thus the concessions or the benefits as available to defence personnel in the employment/services under the Government of India bestowing the benefits for making application within one year before the date of actual discharge in terms of the notification dated 27.10.1986, will occupy the field and, thus, the provisions so contained under Section 2(c) of the 1993 Act would yield as the notifications issued by the Central Government being the central subject will prevail over any State enactment. 41. Learned Senior Counsel while addressing the Court on the second issue has argued that the respondents and their instrumentalities are adopting different yardsticks and not resorting to uniformity in the matter of eligibility criteria for ex-servicemen in selections to services in the State of U.P. As in this regard, learned Senior Counsel has taken illustration of the selections so conducted pursuance to the advertisement dated 16.11.2018 published by Uttar Pradesh Police Recruitment and Promotion Board Lucknow for selection of Constable Civil Police and Constable Police PAC Direct Recruitment, 2018 wherein Clause-5.6 of the same itself granted liberty to the applicants to apply for the said post under the Category of ex-servicemen even when they were not retired/discharged on the last date of submission of application form. Learned Senior Counsel has, thus, argued that it is a clear cut case of violation of Article 14 as well as arbitrariness on the part of the State particularly when both the services namely Police Services and post of V.D.O. are State Services, the appointees being Government servants. In other words, the submission of learned counsel for the petitioner is to the effect that the State being a welfare State cannot act arbitrarily while creating an artificial differentiation by adopting two different yardsticks when both the services fall under the State. 20 42. Learned counsel for the petitioners has also drawn the attention of the Court towards the circular issued on 3.4.1991 by the Government of India which in turn has been accepted and followed in the case of recruitment of police personnel and, thus, the petitioners are also entitled to the same benefits which have been accrued to the police personnel. 43. Emphasizing the third submission, learned Senior Counsel has argued that once no objection certificate has been issued by the competent authority granting their no objection to participate in the selection on the post in question specifying the date of relieving of the petitioners and the same was also taken into consideration by the Commission itself then merely because the petitioners were to superannuate/retire/ discharge after the last date of submission of application form will have no relevance, particularly when the respondents themselves accepted the same and did not question the same when the testimonials of petitioners were scrutinized by them. According to the learned counsel for the petitioners, the petitioners once were subjected to selection and they had not played fraud or concealed any material then it is not open for the State and its instrumentalities to declare that petitioners were not eligible. 44. Lastly, learned Senior Counsel has argued that the petitioners herein are fully qualified and their selections cannot be put to naught. As so far as the petitioner no.1 is concerned he has to his credit the qualification of computer on the basis of B.Tech. Degree in which the petitioner no.1 had studied Information and Communication Technology a subject relatable to Computer and also has to his credit Diploma in Direct Entry Engineering Mechanical (Stream) in which the petitioners had studied Computer Science Theory and Practical as well. 45. Similarly, so far as petitioner no.2 is concerned, he has the qualification of Computer on the basis of B.Tech. degree in which the petitioners had studied Information, Communication and Education Technology and has Computer Fundamentals in other words CCC and has also produced Commanding Officer Mechanical Training Institute, Air 21 Force Station Tambaram, Chennai which is equivalent to Degree in Engineering issued by the Government of India, Ministry of Education and Social Welfare (Department of Education). Likewise, petitioner no.3 has to his credit the qualification relating to Computer on the basis of Diploma in Telecom-Communication (General communication) issued by Cochin University of Science and Technology wherein the petitioner no.3 had studied Information Technology in theory as well as practical. 46. Learned Senior Counsel has further argued that though the petitioners no. 1 and 2 had obtained the degree of CCC from NIELIT in the year 2017 and March 2016 and the petitioner no.3 had to his credit diploma in Tele-Communication, 2009 from Cochin University of Science and Technology, Kochi, however, in view of the order dated 28.1.2014 issued by the Secretary State of Uttar Pradesh addressed to Commissioner Village Development U.P. and the order dated 5.7.2018 issued by Additional Chief Secretary State of U.P. addressed to all Additional Chief Secretary/Chief Secretary/Secretary, the petitioners having higher qualifications like B.A., B.Sc., B.Tech. And M.Sc. and having studied computer as a subject or having computer course in one or two semesters were to be treated eligible and even in fact aforesaid both the orders were relied to and referred to by the Commission in its letter dated 20.12.2018. Thus, equivalence ought to have been considered by the respondents as the petitioners possessed higher degrees and merely because they did not have CCC certificate from NIELIT will not matter at all. According to learned counsel for the petitioners, no exercise whatsoever has been done at the level of the respondents for considering equivalence, thus orders under challenge cannot be sustained in the eyes of law. 47. Sri Navin Kumar Sharma, who appears in the Group II petition has adopted the arguments of the Senior Counsel who had argued in the leading petition and while adding that though the petitioner in this group obtained CCC certificate issued by NIELIT in the month of April, 2016 but he was possessed with CDCA advance computer TRGSCH at Pune and Computer certificate from HS command Pune in 2014. According to him the orders declaring the selection of the petitioner as null and void is illegal. 22 48. In similar fashion, arguments have also been made in Group-III petition filed by Sri Sunil Kumar Singh. ARGUMENTS OF RESPONDENTS (ANSWERERS) 49. Sri Ajit Singh, learned Addl. Advocate General, assisted by Sri Sudhanshu Srivastava, learned Addl. Chief Standing Counsel for the State has sought to argue that Section 2(c) of the Act, 1993 is intra vires and not ultra vires, as in order to insist the Court to hold the statutory enactment to be unconstitutional, the burden lies upon the party who seeks to get a declaration that the statute is unconstitutional and the said burden is in fact a heavy burden and it cannot be discharged in a cavalier manner stating that the statute is arbitrary or unreasonable. 50. Elaborating the said submission, learned counsel representing the State has sought to argue that the 1993 Act is referable to Entry no. 41 of List -III of Schedule- 7 of the Constitution of India. 51. According to the learned counsels representing the State, the entire gamut of the argument, so raised by the petitioners has no force, particularly when the field itself is occupied by the statutory enactment made by the State within its legislative power. It has been further argued that it is always open for the State while resorting to making legislative enactment to lay down the conditions for grant of reservation to ex- serviceman. The basic logic behind insertion of Section 2(c) of the 1993 Act is to grant benefit to the ex-serviceman, who stands retired / relieved/ discharged on the last date of submission of the application form and not to the applicants, who are already in service and who want to play the second innings while seeking to eliminate the chances of those applicants, who at the relevant point of time, i.e., on the last date of submission of application form, have attained maturity qua eligibility in that regard. 23 52. Learned State Counsels have further argued that it is always open for the petitioners to apply under the General Quota while divorcing from the crown of being an ex-serviceman. In particular, the submission is that no prejudice whatsoever has been caused to the petitioners as their chances for consideration have not been eliminated so much so they can always appear and face the selection process while standing on their own legs without taking the aid of being ex-servicemen. 53. Learned counsels for the State have further argued that the NOC so issued by the defence authorities in favour of the petitioners is only referable to no objection to participate in the selection and the same cannot partake a character of a situation which may be far stretched to a condition, whereby it can be termed to be final conferring them the benefit of discharge / relieving / retirement. 54. Learned Counsels for the State have further argued that the petitioners cannot take the benefit of the criteria so adopted for making selections for recruitment on the post of Constable (Civil Police) and Constable (PAC), as the Rules pertaining to selections are entirely different vis-a-vis the selection for the post of V.D.O., as per the terms and conditions as en-grafted in the advertisement. Alternatively, it has been argued that it has been consistent stand of the State that the provisions of Section 2(c) of 1993 Act providing reservation to ex-serviceman to the tune of 5% applies and thus merely because there was certain infraction in the conduction of the selection for the post of Constable (Civil Police) and Constable (PAC), the same will be totally irrelevant in so far as the present controversy is concerned as not only the applicant for recruitment of the post of V.D.O. must be an ex-serviceman on the last date of submission of application form being retired, discharged or superannuated but also he should possess the CCC certificate issued by NIELIT. Thus, according to the State Counsel the orders under challenge are liable to be affirmed. 55. Sri Siddharth Singhal, who appears for the Commission while adopting arguments of the State has further argued that the selections have 24 been conducted as per the provisions contained in the Act and the Rules in vogue, the Commission conducted the selection in impartial and transparent manner and according to him as the petitioners did not qualify the definition of ex-serviceman and did not have the certificate for CCC issued by DOEACC now NIELIT on the last date of submission of application form, the order under challenge cannot be said to be illegal. 56. Sri Shashi Prakash Singh, Addl. Solicitor General, assisted by Sri Purnendu Kumar Singh who appears for the Union of India has adopted the arguments of the State. REPLICATION OF THE PETITIONERS (SUITORS) 57. The learned counsel for the petitioners in the leading petition as well as in the connected petitions have reiterated the arguments in replication, which they had made at the first instance while arguing the writ petition. QUESTIONS OF DETERMINATION (a) Whether Section 2(c) of the Act 1993 is ultra vires of Articles 14 and 16 of the Constitution of India? (b) Whether the petitioners / suitors are entitled to relief qua differential treatment meted to them vis-a-vis the recruitment made with respect to Constable (Civil Police) and Constable (PAC), pursuant to advertisement dated 16.11.2018? (c) Import and impact of issuance of NOC in favour of the petitioners? (d) Issue relating to CCC qualification? DISCUSSIONS 58. We have heard the submissions of learned counsels for the parties and perused the record. 25 59. Before embarking an enquiry into the constitutional validity of the Section 2(c) of the 1993 Act, this Court has to bear in mind, the relevant factors which are to be taken into consideration for adjudging the validity of the statutory enactment, while declaring it to be ultra vires. It is a settled principle of law that in case any party assails the validity of a provision on the ground that it is violative of Articles 14 & 16 of the Constitution of India, then it is for the said party to make necessary pleadings and adduce material to show that the same is in violation of the Articles 14 & 16 of the Constitution of India. The presumption is always drawn that legislature understands and correctly appreciates the need of people and in order to rebut the said presumption, the onus is upon the party, who alleges it to be unconstitutional. 60. The Hon’ble Supreme Court in the case of Chiranjit Lal Chaudhary Vs. Union of India, AIR 1951 SC 41 in paragraph-10 has held as under: - “..I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles...” 61. In the case of State of Bihar Vs. Sm. Charusila Dasi, AIR 1959 SC 1002, in paragraph 14, the Apex Court has held as under: “… It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not in- operative;..” 62. In AIR 1997 SC 1511, State of Bihar vs. Bihar Distillery Ltd., the Supreme Court in paragraph 18 has held as under: - “18. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the 26 enactment. After all, an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void.” 63. In Greater Bombay Coop. Bank Ltd. Vs. United Yarn Tex (P) Ltd, 2007(6) SCC 236, provides as under:- “82. The constitutional validity of an Act can be challenged only on two grounds, viz. (i) lack of legislative competence; and (ii) violation of any of the Fundamental Rights guaranteed in Part III of the Constitution or of any other constitutional provision. In State of A. P. & Ors. v. McDowell & Co. & Ors. [(1996) 3 SCC 709], this Court has opined that except the above two grounds, there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the afore-mentioned two grounds. 83. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 32 confers upon a State Legislature the power to constitute co- operative societies. The State of Maharashtra and the State of Andhra Pradesh both had enacted the MCS Act, 1960 and the APCS Act, 1964 in exercise of the power vested in them by Entry 32 of List II of the Seventh Schedule of the Constitution. Power to enact would include the power to re-enact or validate any provision of law in the State Legislature, provided the same falls in an Entry of List II of the Seventh Schedule of the Constitution with the restriction that such enactment should not nullify a judgment of the competent court of law. In the appeals/SLPs/petitions filed against the judgment of the Andhra Pradesh High Court, the legislative competence of the State is involved for consideration. Judicial system has an important role to play in our body politic and has a solemn obligation to fulfil. In such circumstances, it is imperative upon the Courts while examining the scope of legislative action to be conscious to start with the presumption regarding the constitutional validity of the legislation. The burden of proof is upon the shoulders of the incumbent who challenges it. It is true that it is the duty of the constitutional courts under our Constitution to declare a law enacted by the Parliament or the State Legislature as unconstitutional when Parliament or the State Legislature had assumed to enact a law which is void, either for want of constitutional power to enact it or because the constitutional forms or conditions have not been observed or where the law infringes the Fundamental Rights enshrined and guaranteed in Part III of the Constitution.