Sudhanshu Dhulia, J.

1. The new State of Uttarakhand was created by an Act of Parliament (The Uttar Pradesh Reorganisation Act, 2000) and was established on November 9, 2000, which is referred to as the “Appointed Day.” In pure legal terms, the formation of the new State was a legislative act, which has its source in Articles 2 and 3 of the Constitution of India. Yet, to many who were a witness to the tumultuous events during the preceding years of its formation, the creation of Uttarakhand was also, in great measure, a fitting climax to years of demand and struggle for a new State. It was the culmination of an idea – the idea to form the hill districts of Uttar Pradesh into a separate and distinct unit in the Union of India.

2. This movement for the new State of Uttarakhand had its expressions in peaceful demonstrations, long marches, picketing, which in its wake led to imprisonment of men and women, lathi charges at several places, injuries and even death. The new State after its formation, acknowledged the contribution of the andolankaris (The word “andolankari” here would mean a person who has participated in the movement for a separate State, which is State of Uttarakhand in the erstwhile State of Uttar Pradesh in the 1990) and granted certain benefits to them, such as free bus pass, easier entry in Vidhan Sabha, etc. In addition, the Government in Uttarakhand in the year 2004 not only gave direct appointments in Government service to the “andolankaris” i.e. appointment without any examination or competition, but at the same time made a reservation for them in Government service. In this PIL we have to examine the validity of this act by which a one time direct appointment as well as reservation has been given to the “andolankaris” in Government service.

3. Two Government Orders were passed on 11.08.2004. The first order is G.O. No. 1269/2004. This Government Order straightaway provides for appointment to an “andolankari” on class III and class IV posts, in government service, subject to their qualifications for the posts. These appointments were to be made without any selection process. Being an “andolankari” in the Uttarakhand movement, was the sole criteria. An “andolankari” in the above Government Order is defined as one who was either “injured” or remained in jail for seven days or more, during the Uttarakhand movement.

4. The second Government order which is also of the same date i.e. 11.08.2004 is G.O. No. 1270/2004. This Government Order provides for 10% horizontal reservation to an “andolankari” in all Government Service, i.e. from Class I to Class IV posts. Here an “andolankari” is defined as one who had remained in jail during the Uttarakhand movement for less than seven days.

5. Two petitions came to be filed before this Court. The first being Writ Petition (S/S) No. 945 of 2007, Karunesh Joshi vs. State of Uttarakhand and Others and the second being Writ Petition (S/S) No. 301 of 2009, Narayan Singh Rana vs. State of Uttarakhand and Others. In both these petitions, the petitioners claimed to be “andolankaris” under the definition of “Andolankari” given in Government Order No. 1269/2004 dated 11.08.2004. Their case was that though they were identified as “andolankaris” by the concerned District Magistrate as per the G.O. yet they were not given appointment in Government service, as provided under the above Government Order. They hence sought a writ of mandamus commanding the State authorities to give them the appointment, which was their right, by virtue of G.O. dated 11.08.2004, G.O. Nos. 1269/2004 and 1270/2004.

6. The learned Single Judge, before whom these matters were taken up, was of the opinion that a provision for such appointments cannot be made in Government service by way of an executive order, particularly when there are Rules already in existence, made under Article 309 of the Constitution of India. Further since these Government Orders affect fundamental rights of citizens under Article 14 an