IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.20183 of 2008 Date of Decision: August 12, 2009 Parampal Kaur .....PETITIONER(S) VERSUS State of Punjab & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Harinder Sharma, Advocate, with Ms. Balwinder Kaur, Advocate, for the petitioner. Mr. B.S. Chahal, Deputy Advocate General, Punjab, for respondent Nos.1 to 4. Mr. Arun Chandra, Advocate, for respondent No.5. . . . AJAI LAMBA, J (Oral) Parampal Kaur, daughter of Hakam Singh and Smt. Surjit Kaur daughter of Bhag Singh, has filed this petition under Article 226 of the Constitution of India praying for issuance of a writ in the nature of certiorari, quashing the action of the respondents whereunder the case of the petitioner for appointment as JBT/ETT Teacher (Teaching Fellows) in the category of CWP No.20183 of 2008 [2] Freedom Fighters has not been considered, although the petitioner is higher in merit in that category. It has been pleaded that it is a case of discrimination and violative of Articles 14, 15 and 16 of the Constitution of India in so much as the merit of the petitioner has been ignored on the ground that she is the Dohtri (daughter’s daughter) of a freedom fighter. Respondent No.5, Dharamjit Kaur has been given preference on the ground that she is the Potri (grand daughter, paternal) of a freedom fighter. In the writ petition, it has been pleaded that Smt. Surjit Kaur, mother of the petitioner is daughter of a freedom fighter, namely Bhag Singh, which is an admitted position. Bhag Singh was holder of Tamar Patra (Annexure P-3). In the month of September 2007, the Education Department of the Punjab Government through its Departmental Selection Committee (T), School Education Department (Primary Wing) issued a public notice for filling up 9998 posts which were advertised by way of public notice. 450 out of the said posts have been earmarked for District Bathinda, out of which 4 posts were reserved for the category of Freedom Fighters. CWP No.20183 of 2008 [3] The said 4 posts were further divided as; two posts for female candidates and two posts for male candidates in the category. It has been asserted that the petitioner being eligible for the post, applied for the same in terms of the advertisement. Final merit list of the selected candidates was declared by respondent No.3 which was published in various newspapers and also made available on the website, relevant portion of which has been extracted in Annexure P-8. In the selection list of Freedom Fighter category, two candidates namely Jaswinder Kaur, Registration No.3165, earning 65.485 merit marks and Parampal Kaur (petitioner), Registration No.2135, earning 64.516 merit marks, respectively, were selected. The Department, rather than making appointment according to the published list, deleted the name of the petitioner and selected respondent No.5, in the category reserved for Freedom Fighters, who had earned merit points to the tune of 64.15 i.e. less than the petitioner, the petitioner having acquired 64.516 merit points. Appointment letters were accordingly issued. This action of the respondents is under challenge on the ground that respondent No.5 has been given preference simply because the said CWP No.20183 of 2008 [4] respondent happens to be the paternal grand daughter of a freedom fighter whereas the petitioner is maternal grand daughter of a freedom fighter. It has been pleaded that action of the respondents is in violation of Articles 14 & 16 of the Constitution of India. Notice of motion was issued. The stand taken by the respondents in this regard is contained in Para 14 and 15 of the written statement (on merits), relevant portion of which, when extracted, reads as under:- “14. .......... But on scrutinizing the record of the candidate in the reserve category for the Freedom Fighter, it was found that the petitioner is Dohtri i.e. Daughter’s daughter of the Freedom Fighter whereas the respondent No.5 is the Potri (i.e. son’s daughter) of the Freedom Fighter. It is further submitted that the name of the petitioner was deleted as per the General condition No.4 of the advertisement which indicate that in the case of selection of candidates are to be considered in the sequences of potri/potra and dotri/dotra. 15. That in reply to para No.15 of the writ petition, it is submitted that the respondent No.5 is Potri of the Freedom Fighter whereas the petitioner is Dohtri of the Freedom Fighter. Appointment of the respondent No.5 was issued as per the General conditions mentioned in the advertisement. Rest of the para is irrelevant to the replying respondents.” Learned counsel for respondent Nos.1 to 4 has not been able to dispute this factual position. Learned counsel, however, supports the plea of the respondents that in terms of reservation, potri and potras (paternal grand son and grand daughter) in that order, are required to be given preference to Dotra and CWP No.20183 of 2008 [5] Dotri (maternal grand son and grand daughter). I have heard learned counsel for the parties and have considered the issue. For the right reasons, learned counsel for the petitioner has relied on judgment dated 6.7.2009 rendered by this Court in Civil Writ Petition No.18162 of 2008 titled `Jaspreet Kaur vs. State of Punjab & Others’. Relevant portion of the judgment, when extracted, reads as under:- “In the above facts and circumstances, I am of the considered opinion that the action of the respondents in ignoring the candidature of the petitioner for appointment is whimsical, frivolous and eccentric. The stand taken by the respondent no. 4 in the impugned order and the written statement is inconsistent with the provisions contained in Annexure P-6, which is relevant to the issue. There is no circular or instruction which stipulates that at the cost of merit, preference be given in sequence to the children of the son and then to that of the daughter of a freedom fighter. The action of the respondents is also against the provisions of Article 15(1) of the Constitution of India which clearly prohibits discrimination on the ground of sex. There being no material to indicate that son's children are to be given preference in sequence, the action of respondents tentamounts to discrimination on the ground of sex. The action of the respondent is also in violation of right of the petitioner provided under Article 16 (2) of the Constitution of India which provides that no citizen shall, only on the ground of sex, be discriminated against, in respect of any employment under the State. Having considered the issue, I find the approach of the District Education Officer to be totally perverse. By any stretch of imagination, a son's daughter cannot be given preference over daughter's daughter of a freedom fighter. It would be highly unjust, unreasonable and arbitrary to consider daughter's son and daughter's daughter to be secondary to the son's son and son's daughter when considering the objective of granting reservation to the children/grand children of Freedom Fighters. In view of the above, I am of the considered opinion that the approach adopted by the District Education Officer while passing Annexure P-8 is arbitrary and liable CWP No.20183 of 2008 [6] to be quashed. The order is against the contents and import of circular Anneuxre P-6. Reference to Annexure R-1 and R-2 is totally de hors the controversy as Annexures R-1 & R-2 do not even refer to the controversy raised in this petition and is not relevant to the issue involved. Resultantly, the petition is allowed. The petitioner would be given appointment as per her merit/marks determined by the respondents. Since the petitioner is not at fault and has been deprived of her rightful claim being higher in merit, the arrears in salary and all other consequential benefits would be given to the petitioner. It is further directed that the officer working on the post of District Education Officer (Elementary Education), Ludhiana (respondent no. 4), who has deprived the petitioner of her legal claim, would pay costs Rs. 10,000/- to the petitioner. The needful be done within four weeks from the date of receipt of certified copy of the order.” Learned counsel for the respondents have not been able to draw any distinction in the judgment rendered in Jaspreet Kaur’s case (supra). When the facts of the present case are considered in the context of the law as laid down in Jaspreet Kaur’s case (supra), it follows that the respondents cannot adopt a criteria in giving preference to the paternal grand daughter (Potri) over the maternal grand daughter (Dotri). Merit inter-se the female candidates from Freedom Fighter category is the criteria required to be followed. Facts of the case make it evident that the petitioner has higher merit points (64.516) as compared to respondent No.5 who earned less merit points (64.15). In view of the above, the writ petition is allowed with costs Rs.10,000/-. The official respondents are required to consider the CWP No.20183 of 2008 [7] petitioner as per her merit. The needful be done within 45 days of receipt of copy of this judgment. Since the petitioner is not at fault and has been deprived of her rightful claim, being higher in merit, the arrears of salary and all other consequential benefits would be given to the petitioner. Learned counsel for respondent No.5 states that other than the petitioner, no other person has joined in the category. The other selected person namely Jaswinder Kaur has not joined and therefore, one post remains unfilled. It has been contended that out of the selected persons, after the petitioner, respondent No.5 would be the highest in merit who has already joined. Respondent No.5 would be at liberty to file representation in this regard to the respondents and in case, a post is lying vacant and the respondent is the only other available selected candidate, the respondents would be at liberty to consider the claim of respondent No.5. (AJAI LAMBA) August 12, 2009 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?