Punjab-Haryana High Court
Gupreet Singh Kang vs The State Of Punjab And Others on 19 September, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.19388 of 2011 (O&M)
Date of Decision:19.9.2012
Gupreet Singh Kang ...... Petitioner
Versus
The State of Punjab and others
...... Respondents
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
***
Present: Mr. K.S. Bassi, Advocate for the petitioner.
Mr. Hari Pal Verma, Addl. A.G. Punjab.
RAJIV NARAIN RAINA, J.
Replication filed on behalf of the petitioner is taken on record. In this petition filed under Article 226 of the Constitution the vires of an amendment dated 21.5.2002 has been questioned as illegal and discriminatory. The amendment has been made to the notification dated 2.2.1982 promulgating the Punjab Recruitment of Ex-Servicemen Rules, 1982 (for short "the 1982 Rules"). The 1982 Rules were amended by notification dated 22.9.1992 and second proviso to Rule 4 was inserted to read that an 'Ex-Serviceman' would include the wife or the dependent child of an Ex-serviceman for purposes of direct recruitment against reserve vacancies.
It is contended that there was no bar or restriction earlier on the number of children who could avail benefit of being dependents of Ex- serviceman for public employment and the reservation was available to the wife of the Ex-serviceman as well. The impugned notification restricts the benefit to the wife or a dependent child of an Ex-serviceman. This Civil Writ Petition No.19388 of 2011 (O&M) -2- restriction imposed by the amendment is said to be creating discrimination within the family of an Ex-serviceman. It is argued that there is no such limit or restriction on lineal descendants of freedom fighters in Punjab nor for wards of Police Personnel which include sons, daughters and brothers. It is contended that equality should be ensured among the different categories for whom such concessions are available.
In the reply filed by way of counter affidavit of Director Sainik Welfare Punjab, Chandigarh, it has been pointed out that the benefit of reservation meant for Ex-serviceman has already percolated down to the sister of the petitioner, who has been granted public employment under the State of Punjab and therefore, in terms of the amendment, the State is denuded of its power to make another appointment within the family of the Ex-serviceman.
The Secretary, Subordinate Services Selection Board, Punjab- respondent No.4 has filed written statement detailing that the process of recruitment against the advertisement of several hundred posts of clerks in various departments has not been completed in view of the stay granted by this Court in two writ petitions mentioned in para 2 of the affidavit in reply.
On 17.10.2011, this Court by an interim order had called upon the State to file an affidavit to explain as to whether benefit of reservation is extended to more than one child in case of freedom fighters and police personnel categories respectively by the State for grant of reservation. The Deputy Secretary to Government of Punjab, Department of Home Affairs and Justice has filed an affidavit dated 27.2.2012 wherein it has been explained as follows:
"That the Department of Home Affairs and Justice (Home-I Branch) had issued sanction vide letter No.1(211)94-2H(1)/ Civil Writ Petition No.19388 of 2011 (O&M) -3- 10176 dated 11.6.1996 (Annexure R-1/1) for reservation of 2% of posts for the wards of deserving policemen for recruitment as Constables, Assistant Sub Inspectors and Inspectors out of direct recruitment quota only in respect of active field posts which were previously meant for handicapped persons. In these instructions the term "deserving" will cover wards of the following police personnel:-
"i) who have suffered casualties of one or more of the following relatives:-
a) Father
b) Mother
c) Sister/Brother
d) Son/daughter
e) Any other dependent family member.
OR
ii) who has suffered permanent disability on account of
action against terrorists or attack by terrorists.
OR
iii) who has been awarded President's Police Medal Gallantry or police Medal for Gallantry for showing bravery in actions against terrorists.
iv) who has taken part in at least 3 encounters with terrorists.
OR
v) who otherwise in the opinion of the Director General of Police has been in forefront of the fight against terrorists.
The "Wards" proposed to the covered would be dependent son, dependent daughter, dependent brother, dependent sister or any other dependent family member.
The persons to be given such appointments against 2% proposed quota would be selected by the following types of Committees, for which proposal may be sent to Govt.
a) In respect of Constable:
The Committee for the recruitment of Constables would be constituted by the Director General of Police, in accordance with instructions of the personnel Deptt.
b) In respect of ASIs/Inspectors:-
The Committee in respect of enlistment of
ASIs/Inspectors will be headed by the Principal Secretary Home, Civil Writ Petition No.19388 of 2011 (O&M) -4- the other member of the committee will be as per instructions of the Personnel Department."
3. That a per information supplied by the Director General of Police, Punjab after collecting it from his field units vide their U.O. No.804/E-1(4) dated 13.12.2011 (Annexure R-2/1) it has been intimated that more than one wards of freedom fighters and police personnel have been considered while making an appointments in the police department.
4. That in view of the above mentioned facts, it is submitted that more than one wards of the Freedom Fighters and the Police Personnel have been considered for recruitment in view of the peculiar conditions and circumstances in which sacrifices were made by the Freedom Fighters and the Police Personnel for the society and the nation. These benefits of reservation are not available to wards of those policemen who have rendered service in normal conditions and circumstances. Thus the case of the petitioner is not comparable with the wards of the Freedom Fighters and wards of the Police Personnel as covered under instructions No.1(211)94-2H(1)/10176 dated 11.6.1996 (Annexure R-1/1). As the petitioner is not similarly circumstanced being in the different category i.e. dependent of an ex-serviceman, there is no discrimination in the matter of giving reservation. It is made clear that his reservation is governed by Punjab Recruitment of Ex-servicemen Rules, 1982 and not by the policy (Annexure R-1)."
The petitioner has filed a replication in court which has been taken on record. In the replication, a parallel has been sought to be drawn of the sacrifices made by freedom fighters, police personnel and Ex- servicemen and that the efforts of all should be respected.
We have no doubt all three categories deserve profound salutation for their contribution to building the nation and ought to be respected for sacrifices made to the country but at the same time we are confronted with the great wall of policy making power of the State Government which has redone quantification of the benefit restricting it to Civil Writ Petition No.19388 of 2011 (O&M) -5- either the wife or one dependent child of an Ex-servicemen. Viewed from this angle and from the explanation given in the affidavit extracted above the amendment cannot be said to be unreasonable, arbitrary or mala fide as suggested by the learned counsel for the petitioner as a provision of this kind cannot be accepted as a regular and limitless source of recruitment. The benefit is in the nature of a concession which is normally not justiciable or judicially reviewable being basically a policy matter falling in the province of legislation, subordinate or delegated legislation. The benefit has been pruned a little by the impugned amendment so that what remains can be passed on to others outside the group and save yet another family from penury. It is well settled that government jobs are not largess to be distributed at will without visiting Articles 14 & 16 of the Constitution.
Having heard Mr. K.S. Bassi, learned counsel for the petitioner and Mr. Hari Pal Verma, Addl. Advocate General Punjab appearing for the State, we are unable to accept his submission that his client would have a right of consideration for appointment against ex-servicemen quota in the face of his sister having secured a government job and having exhausted the concession in relation to the progenitor ex-serviceman. The petitioner would be at liberty to compete on merit in the general category.
We find no merit in the petition.
Dismissed.
( HEMANT GUPTA ) ( RAJIV NARAIN RAINA )
JUDGE JUDGE
19.9.2012
rajeev