Himachal Pradesh High Court
Sabita Kumari vs State Of H.P. & Ors on 23 May, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 23rd DAY OF MAY, 2022,
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL.
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 1552 of
.
2020
Between:
SABITA KUMARI, W/O SH.
SHAMMI RANA, D/O SH.
PARVEEN SINGH, R/O VILLAGE
KUTHMAN, P.O. BANDI, TEHSIL
SHAHPUR, DISTRICT KANGRA,
H.P.
...PETITIONER
(BY MR. SHUBHAM SHARMA, ADVOCATE)
AND
1. THE STATE OF H.P.
THROUGH SECRETARY (ANIMAL
HUSBANDRY) SHIMLA-2.
2. THE DIRECTOR ANUMAL
HUSBANDRY SHIMLA-5.
3. KUSUM LATA, D/O SH.
RAVINDER KUMAR SHARMA,
R/O VILLAGE PREI, P.O.
BAJRER TEHSIL SHABPUR,
DISTRICT KANGRA, H.P.
...RESPONDENTS
(BY MR. DINESH THAKUR, MR. SUMESH RAJ & MR.
SANJEEV SOOD, ADDITIONAL ADVOCATES GENERAL, FOR
RESPONDENT NO.1 AND 2
MR. VISHWA BHUSHAN, ADVOCATE, FOR RESPONDENT
NO.3)
WHETHER APPROVED FOR REPORTING? Yes
_____________________________________________________________
This petition coming on for orders this day, the Court
passed the following:
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2
JUDGMENT
.
By way of this petition, the petitioner has prayed for issuance of a direction to the respondents/Department to appoint her as a Veterinary Pharmacist on contract basis with all consequential benefits and for setting aside of the selection of respondent No.3 against the said post.
2. The case of the petitioner is that she is the grandchild of a freedom fighter in terms of Annexure A-1, which is a certificate, issued in her favour by Sub Divisional Magistrate, Kangra, District Kangra, H.P., which certifies that the petitioner is the granddaughter of late Sh. Khajan Singh, who has been recorded as freedom fighter in the book of freedom fighters at Page No.61. She joined as Job Trainee Veterinary Pharmacist at Veterinary Hospital Chatru, District Kangra, H.P., and thereafter she was appointed as a Gram Panchayat Veterinary Assistant on contract basis at Veterinary Hospital Chatru, District Kangra, H.P. The petitioner was married on 10.10.2016. In terms of Annexure A-5, the name of petitioner is at serial No.1 in the category general (freedom fighter) merit list of Batch 2010-12.
Vide notification Annexure A-6, dated 27th October, 2016, Director Animal Husbandry, Himachal Pradesh, advertised 95 posts of Veterinary Pharmacist (Batch wise) on contract basis.
This included one post under general category for ::: Downloaded on - 24/12/2022 09:22:06 :::CIS 3 children/grandchildren of freedom fighters. The petitioner being eligible applied for the post and in terms of result which was declared vide Annexure A-7, respondent No.3 has been selected, .
whereas, the petitioner has been denied appointment against the post in issue from general freedom fighter quota. As per the petitioner, she was ignored for appointment against the post in issue only on the ground that she was married at the time of her being considered for appointment against the post in issue.
3. Feeling aggrieved, the petitioner has filed the present writ petition assailing the act of respondents of denying her appointment against the quota reserved for children/grandchildren of freedom fighters on account of her marriage.
4. The petition is opposed by the respondents-
Department on the ground that though the petitioner was at serial No.1 in the merit list reserved for children/grandchildren of freedom fighters 2010-12, but she was not selected as she was married at the time of interview and as per letter dated 24.01.2009, issued by the Secretary (General Administration) to the Government of Himachal Pradesh, married daughters are not eligible for the benefit of reservation reserved for children/grandchildren of freedom fighters in the freedom fighter quota. A copy of the said letter is appended with the reply as Annexure R-1. It is further the stand of the respondents-
Department that, whereas, the petitioner was married at the time ::: Downloaded on - 24/12/2022 09:22:06 :::CIS 4 of appointment for the post in issue on contract basis, respondent No.3 was unmarried and, therefore, she was offered appointment.
.
5. I have heard learned counsel for the parties and also gone through the pleadings as well as documents appended therewith.
6. It is not in dispute that in terms of the category-wise merit list of Batch 2010-12 of general (freedom fighter quota candidates) the petitioner is above the selected candidate in merit. This is apparent from Annexure A-5 appended with the petition in which the name of the petitioner is at serial No.1 and that of the selected candidate/respondent No.3 is serial No.2.
7. The rejection of the candidature of the petitioner for being appointed against the post of Veterinary Pharmacist on contract basis against general (freedom fighter) quota is only on the ground that the petitioner was married at the time of interview.
8. This Court is of the considered view that the rejection of the candidature of the petitioner who admittedly happens to be the granddaughter of a freedom fighter on the ground that as on the date of interview she was married is arbitrary. The reservation under the freedom fighter quota to the children and grandchildren of the freedom fighters entails from the debt the country owes to the freedom fighters. As a mark of respect to the said freedom fighters, reservation is being given in ::: Downloaded on - 24/12/2022 09:22:06 :::CIS 5 employment to the children and grandchildren of freedom fighters.
9. It is not understood as to how a daughter or a .
granddaughter of a freedom fighter loses her status of being kith and kin of freedom fighter after marriage. This gender discrimination is arbitrary and completely unacceptable.
10. Article 14 of the Constitution of India permits classification. However a classification to be constitutional has to be based on intelligible differentia and it must have a reasonable and a valid nexus with the objects to be achieved by way of a classification.
11. In the present case, the classification which has been made by the State on the strength of instructions dated 24.01.2009 between married and un-married daughters/granddaughters of a freedom fighters is neither based on any intelligible differentia nor it has any nexus with the object to be achieved which is to offer appointment to the wards of freedom fighters as a mark of respect for what the freedom fighters had done for the nation.
12. Therefore, this Court has no hesitation in holding that denial of appointment to the petitioner against the post of Veterinary Pharmacist on contract basis by the respondents-
Department on the ground that she was married as on the date of interview is unconstitutional and not sustainable in law.
13. The instructions being relied upon by the ::: Downloaded on - 24/12/2022 09:22:06 :::CIS 6 Government are read down as being unconstitutional and the same cannot be relied upon by the Government to deny appointment to either a daughter or a granddaughter of a .
freedom fighter after marriage.
14. Incidentally, Hon'ble Division Bench of this Court in CWPIL No. 114 of 2017, titled as Court on its own motion Vs. State of H.P. & Ors., decided on 14.08.2018, while answering the following questions held that the policy of the State providing reservation for recruitment confined only to unmarried daughters was discriminatory:-
1. Whether Policy of the State, providing reservation for recruitment, confined only to the unmarried daughters, unlike sons, who are married, is discriminatory or not?
2. If the marital status of a son does not make any difference in law, qua his entitlement or eligibility s a descendent, then why should marital status of a daughter, in terms of constitutional values, make any difference?
3. Whether there is a nexus with the objects sought to be achieved by the said action of the State?
15. Accordingly, in view of the above discussion, this Writ Petition is allowed. The act of the respondents of denying appointment to the petitioner against the post of Veterinary Pharmacist on contract basis on the ground that the petitioner was married as on the date of interview is held to be bad in law.
The respondents are directed to offer appointment to the petitioner against the post of Veterinary Pharmacist on contract basis as from the date when respondent No.3 was appointed ::: Downloaded on - 24/12/2022 09:22:06 :::CIS 7 against the post with all consequential benefits, but with the rider that the monetary benefits will be notional as up to the date of the pronouncement of this judgment. This Court further orders .
that as far as respondent No.3 is concerned, the Court is not interfering with her appointment and the petitioner be offered appointment against any other vacant post and if the post is not vacated, then a supernumerary post be created as a matter of personnel to the petitioner taking into consideration the peculiars facts of the present case.
16. Petition stands disposed of in above terms, so also miscellaneous pending application(s), if any. No order as to costs.
(Ajay Mohan Goel) Judge May 23, 2022 (vinod) ::: Downloaded on - 24/12/2022 09:22:06 :::CIS