Punjab-Haryana High Court
Sat Pal vs State Of Haryana And Ors. on 19 March, 1998
Equivalent citations: (1998)119PLR786
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT G.S. Singhvi, J.
1. These petitions are being decided by a common order because common issues of fact and law are involved in them.
2. There is no controversy between the parties that on the basis of selection made by the Subordinate Service Selection Board (hereinafter described as 'the Board') in pursuance of advertisement No. 3 of 1991, the petitioners were appointed as Gram Sachivs against the posts/vacancies reserved for Ex-servicemen and their dependents. After over three years of their joining the duties and in the purported compliance of the direction given by the Apex Court on 253.1996, while deciding Civil Appeal No. 6887 of 1996, Dilwan Singh and Ors. etc. etc. v. State of Haryana and Ors. etc. etc., and other connected appeals, the Director, Development and Panchayat, Haryana, issued memos, dated 1.10.1996 requiring the petitioners to appear before the Board and produce the original discharge certificates of Ex-servicemen on whom they were dependent, the eligibility certificates issued by the Zila Sainik Board and an affidavit in the enclosed proforma. Each of the petitioners appeared before the Board and submitted the required documents. This was followed by notices which the Director issued to the petitioners requiring them to show cause why their services be not terminated. The petitioners submitted separate replies to the show cause notices. Thereafter, the Director, Development and Panchayats passed the impugned orders and terminated their services on the ground that they do not fall in the category of the dependents of Ex-servicemen.
3. The petitioners have challenged the impugned orders on the ground of non-application of mind, arbitrariness and violation of the principles of natural justice. The respondents Nos. l and 2 have justified the termination of the services of the petitioners by relying upon the instructions issued by the Government on 21.11.1980. Their contention is that the petitioners owned and possessed agricultural land at the time of selection and, therefore, they cannot be treated as dependents of Ex-servicemen.
4. In a separate written statement filed by it, the respondent-Board has relied on the directions given by the Supreme Court, the affidavit filed by the petitioners and their statement to justify termination of their services. The Board has averred that the petitioners are having substantial agricultural land and, therefore, they do not fall in the category of dependents of Ex-servicemen.
5. The question that arose for determination by the Apex Court in Civil Appeal No. 6887 of 1996, Dilwan Singh and Ors. etc. v. State of Haryana and Ors. etc etc., and connected appeals was whether dependents of Ex-servicemen could be appointed against the posts reserved for Ex-servicemen ignoring the claim of the Ex-servicemen. Their Lordships of the Supreme Court upheld the contention of the appellants that they were entitled to be appointed in preference to the dependents of Ex-servicemen. While doing so, the Apex Court observed that the S.S.S. Board cannot rely on the certificates produced by the candidates showing their dependency on the Ex-servicemen without making proper scrutiny and inquiry. The observations made by the Apex Court on this issue are :
"We are of the view that the Board is not justified in law to take such a stand, The Board being the recruiting agency, it is its duty to verify and find out whether a candidate who has laid his claim as a dependent son or daughter of the deceased Ex-servicemen, fulfilled the criteria referred to earlier for recruitment to the vacancies reserved for unfilled posts of Ex-servicemen. On being satisfied, the other consideration has to be looked into and selection process could be made and candidates are selected according to prescribed procedure. It being the primary duty of the selection Board, it cannot abdicate its function by merely relying on certificate issued by the Sainik Board which is only a recommending authority certifying that the candidate is a dependent of the Ex-serviceman. It may be accepted only a prima facie evidence. The certificate does not ipso facto became conclusive nor would it entitle the candidate to be considered as a dependent of the Ex-servicemen. It would be for the Board to examine and in case of any doubt, it should call upon the candidate to satisfy the Board that the candidate is dependent and fulfills the requirements prescribed in the guide-lines. That was not done in these cases. Under these circumstances, the appeals are allowed. There shall be a direction to the first respondent to call upon the candidates to satisfy the requirement referred to herein before and then process their applications according to law and consider their cases against the unfilled posts reserved for the Ex-servicemen within a period of six weeks from the date of the receipt of this order."
6. With the avowed object of complying with the direction given by the Supreme Court, the Board initiated steps for verification of the credentials of the candidates who were selected in the category of Ex-Servicemen. The Secretary of the Board wrote letter dated 1.10.1996 to the Director, Panchayats, Haryana, that the selected candidates should be directed to produce their certificates and also file affidavits to prove that they are dependents of Ex-servicemen. The respondent No. 2 promptly issued letters to the petitioners requiring them to produce relevant certificates and affidavits before the Board. After this was done, the Board cancelled the candidature of 14 persons including the petitioners who were appointed as Gram Sachivs. This fact is clearly borne out from the letter No. SSSB-Conf. 97/296. dated 30.5.1996 written by the Secretary of the Board to the Director, Panchayats. The relevant portion of this letter is reproduced below :-
"7. A study of the criteria for determining as to who is a D/ESM showed that the essential ingredients and the essence of the Government instructions is that a child or wife of an ESM will be eligible to be treated as his dependent only if he/she is wholly dependent on his father/mother/husband. In other words, a child or wife of an ESM who has some income of his/her own, is not entitled to be declared as a D/ESM.
8. After careful and prolonged deliberations, the Board has come to the conclusion that the undermentioned candidates did not fulfill the conditions prescribed by the Government for being treated as a D/ESM, for reasons briefly recorded against each:-
Sr. Roll No. Name and Brief reasons for being treated as
No. Father's Name. uneligible.
1. 2370 Sh. Ram Partap S/o Inherited agriculture land after
Sh. Bhani Ram. the death of his father in 1991
(clause ii of para 8 supra refer).
2. 1187 Sh. Swaran Singh S/o Was Working as Munshi of an
Sh. Dewan Singh. Advocate for 8 years. Earning about
Rs. 2,000/- p.m. left the said job
after selection as Gram Sachiv.
3. 2188 Sh. Satpal Singh S/o Owns one acre of agriculture land.
Sh. Nihal Singh.
4. 304 Sh. Vimal Kumar S/o Was serving as Accounts Clerk in
Sh. Kulbushan a Pvt. Ltd. firm at the salary of
Rs. 1200/- per month.
5. 1904 Sh. Krishan Kumar S/o Inherited one acre of agriculture
Sh. Devsi Ram. land after the death of his father in
April/May, 1991.
6. 2566 Sh. Om Parkash S/o Came to own agriculture land
Sadhu Ram measuring 23 kanals 4 marlas by
virtue of declaratory suit No. 53
of 1991 decided on 16.4.1991.
7. 2245 Sh. Sultan Singh S/o Own agriculture land measuring
Sh. Pale Ram. 3 acres and 1 kanal.
8. 2054 Sh. Radhey Sham S/o Inherited agriculture land measuring
Sh. Sant Ram. 5 kanals after the death of his father
in 1990.
9. 1830 Sh. Krishan Kumar S/o Owns agriculture land measuring
Sh. Ram Narain. 1 Acre for the last about 10 years.
10. 2073 Sh. Ram Dia S/o Owns agriculture land measuring
Sh. Narsi Ram. over 3 acres.
11. 2191 Sh. Subhash Chander Owns agriculture land measuring 3
S/o Dai Ram. kanals and 14 marlas. His father is
still alive who owns 17 acres of land.
12. 1843 Sh. Jai Narain S/o Owns agriculture land measuring
Sh. Prabhu Ram. 73 kanals.
13. 1700 Sh. Bhupinder Singh Inherited 4 kanals of agriculture land
S/o Hajoor Singh. on the death of his father in 1988.
14. 1838 Sh. Jaswant Singh S/o Inherited 2 acres of agriculture land
Sh. Hari Singh. on the death of his father in 1991.
In view of the position explained above, the Board has decided to cancel the candidature of the above mentioned 14 candidates of DIESM category. Earlier recommendations made in favour of these candidates vide Board's Letter No. SSSB(Confd.)-92/581, dated 01.02.1993 and No. S/SSB (Confd)-93/83 dated 27.4.1993 are hereby withdrawn. As such you are requested to terminate the services of the above mentioned 14 candidates forthwith."
7. In order to give effect to the decision taken by the Board, the respondent No. 2 issued notices to the petitioners and terminated their services on the ground that the Board has declared them ineligible for recruitment as dependents of Ex-servicemen. AH this shows that the Board had taken decision to nullify the selection of the petitioners without giving any notice or opportunity of hearing to them and the exercise undertaken by the respondent No. 2 before terminating the services of the petitioners was an empty formality and an eye wash.
8. The letters issued by the respondent No. 2 calling upon the petitioner to produce the certificates and affidavits before the Board did not contain any indication that it was proposed to cancel their candidature. The notices issued by the respondent No. 2 after the Board had taken decision to cancel the candidature of the petitioner also did not envisage reconsideration of the Board's decision on the issue of petitioners eligibility. On its part the Board did not give any notice to the petitioner. Therefore, decision of the Board to cancel the selection of the petitioners and the consequential orders passed by respondent No. 2 terminating their services are liable to be invalidated on the ground of clear violation of basics of natural justice.
9. We also find considerable merit in the submission of the learned counsel for the petitioners that the impugned actions of the respondent Board and the Director, Development and Panchayats are vitiated due to arbitrariness and non-application of mind. The instructions issued by the Government of Haryana vide circular letter No. 12/37/79/GSII dated 21.11.1980 contain guidelines for deciding the issue of eligibility of the dependents of Ex-servicemen. The relevant extract of this letter reads as under :-
"I am directed to invite your attention to the Haryana Government circular letter No. 12/37/39-GS II, dated the Ist July, 1980, on the subject noted above and to say that according to the instructions contained in Haryana Govt. Circular Letter No. 12/37/79-GS II, dated the 21st May, 1979, the dependent sons and daughters of Ex-servicemen, age etc. prescribed for various posts are also to be considered on merits for the posts reserved for the Ex-servicemen and this entitlement would be available to one dependent child only. A question has arisen whether the candidates of the following types can be considered as eligible for the purpose of the aforesaid instructions:-
i) a person may be working on an ad-hoc basis against the post advertised or some where also;
ii) a person may be unemployed at the time of making the application but he may have other sources of income viz; from agriculture, trade, property, bank balance etc.
iii) an unemployed person who is a member of the joint family may also constitute to the pool of the family income by lending help;
iv) a person who has already done his graduation or is doing post graduation and is getting merit scholarship for the studies.
v) a person who is member of the joint Hindu Family and remains dependent upon the Karta till there is partition in the Joint Hindu Family and is obliged to pass on all his income to the karta and draw a money for his subsistence from the pool of the joint Hindu Family with the consent of the Karta.
vi) a candidate who is a member of the Joint Hindu Family is employed on an adhoc basis but he is otherwise dependent of his father.
2. None of the persons mentioned at Sr. No. (i), (ii), (v) and (vi) falls within the definition of the word 'dependent' because each of them appears to have some independent source of livelihood and, therefore, none of these can be said to be dependent on his father or mother. The persons falling under Sr. No. (iv) would be deemed as dependent on their father and mother. The persons falling under category (iii) will also be termed as dependents if the joint Hindu Family consists of the father and the sons. In such a situation the sons will be termed as dependents.
3. On consideration of this matter, the State Govt. has decided that the petition as stated above in regard to the term 'dependent' should be kept in view while considering the dependent sons and daughters of Ex-servicemen for appointment against the post of Ex-servicemen."
10. The learned Deputy Advocate General relied on Clause (ii) of the above extracted instructions to support the decision taken by the S.S.S. Board and the Director but we are unable to agree with him. The critical and crucial factor which has to be kept in mind while deciding the issue of eligibility of a person to be considered as a dependent of Ex-serviceman is whether he has other sources of income viz. from agriculture, trade, property, bank balance, etc. In other words a person may be a ward of an Ex-serviceman and he may be un-employed at the time of making the application for recruitment against the post reserved for the Ex-serviceman but still he will not be considered eligible for selection against the reserved vacancies if he has other sources of income. A bare reading of the letter dated 30.5.1997 written by the Board shows that it has treated the petitioners ineligible for selection against the posts reserved for Ex-servicemen solely on the ground that they own or have inherited agricultural land from their ancestors. This, in our opinion, cannot be treated as a correct approach for determination of the eligibility of the petitioners to be recruited as dependents of Ex-servicemen. The Board was required to examine the question whether the agricultural land owned/inherited by the petitioners yields substantial crop and provide perennial source of income to the candidate. Only on reaching such conclusion the Board could cancel the candidature of the concerned person. Since, no such exercise has been undertaken by the Board, its decision to cancel the candidature of the petitioners and the orders passed by the respondent No. 2 will have to be nullified.
11. For the reasons mentioned above, the writ petitions are allowed. The decision of the Board to cancel the candidature of the petitioners as well as the order passed by the Director, Development and Panchayats, Haryana, terminating the services of the petitioners are declared illegal and quashed with the direction that the respondents shall determine afresh the eligibility of the petitioners to be recruited against the posts reserved for Ex-servicemen.