Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Rakesh Pande, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel.

2. The present writ petition has been filed with the prayer for mandamus commanding the respondent to grant appointment to the petitioner on the post of Excise Constable in the Excise Department being a candidate under the category of Dependents of Freedom Fighter pursuant to the Advertisement No. 1370/Upa,Va/2003-03/As,si/Bharti/dated 2.9.2002 issued by the Deputy Excise Commissioner, Varanasi Range, Varanasi.

3. By means of the amendment, further relief of mandamus has been sought commanding the respondents to appointment the petitioner on the aforesaid post pursuant to a subsequent advertisement dated 25.3.2003, wherein 2% reservation under Freedom Fighter quota had been applied pursuant to the Government Order dated 4th May, 1995 issued by the State Government.

4. Brief facts relevant to decide controversy at hand are that the petitioner has submitted an application form pursuant to the aforesaid advertisement published on 4.9.2002 to fill up 60 posts of Excise Constable of all social reservation category namely General, Backward Classes, S.C. & S.T. The petitioner had applied being in the category of General candidate. However, he submits that being dependent of Freedom Fighter, he was entitled for reservation of the said category.

5. It is contended that in the application form submitted on 10.9.2002, the petitioner has described himself being dependent of Freedom Fighter in the relevant column No. ‘8’, (wherein description of reservation category of the candidate was required to be filled up). The averments in this regard have been made in paragraph ‘7’ of the writ petition. He was issued an admit card with Roll No. ‘3584’ and had appeared in the physical test conducted on 9.10.2002. Having qualified in the physical test, he appeared in the interview held on 10.1.2003 at the office of respondent No. 2 and successfully completed all the formalities.

6. The final result was declared on 24th January, 2003 but the name of the petitioner did not find place in the select list. Aggrieved, he filed a representation before the respondents on 29.1.2003 making query as to why he was not selected. Reminders were sent but no response was received, hence this writ petition was filed with the contention that the respondent No. 3 was under obligation to apply the horZontal reservation quota of Freedom Fighter category. The petitioner being only candidate in the said category was entitled for appointment. The action of the respondent in not granting him appointment to the post of Excise Constable is, therefore, illegal and contrary to the mandate of U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended by 1997 Act.

7. On presentation of the writ petition, a counter-affidavit dated 16.10.2002 was filed on behalf of the respondent Nos. 1 to 3.

8. A categorical stand has been taken therein that the advertisement dated 2.9.2002 was issued pursuant to the Government Order dated 24.8.2002 which provided a break-up of the posts of Excise Inspector as per the social reservation category i.e. General, O.B.C., S.T. and S.T. There was no direction to apply reservation quota in horZontal category. As no post was reserved for the dependents of Freedom Fighter category and hence there was no question of application of the said reservation. Moreover, the petitioner attained lower marks than the last selected candidates in the General category and as such, he could not be given appointment.

9. The copy of the Office Order dated 29th August, 2002 issued from the office of the Excise Commissioner, U.P. pursuant to the Government Order dated 3.8.2002 has been filed as Annexure ‘C.A.-1’ to the counter-affidavit. A perusal thereof indicates that reservation in any of the horZontal category was not applied to the post advertised