HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.19503 of 2008 Date of Decision: 06.10.2010 **** Capt. Janmej Singh ... Petitioner VS. State of Punjab and others …Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Onkar Singh, Advocate for the petitioner Mr. H.S. Brar, Addl. AG Punjab ***** SURYA KANT J. (ORAL) (1). The petitioner – Captain Janmej Singh has been compelled to knock at the doors of this Court to seek a mandamus for appointment of his daughter – Ms. Jyotsna Singh against Class-I or Class-II post in recognition of the supreme sacrifice made by his only son Lieutenant Triveni Singh. (2). The facts may be briefly noticed. The petitioner’s son Lieutenant Triveni Singh of 5-Jammu and Kashmir Light Infantry challenged the heavily armed group of terrorists on 2nd January, 2004 who had entered the Jammu Railway Station and fired indiscriminately targeting innocent passengers - killing 3 of them and leaving 15 injured. Lieutenant Triveni Singh was a member of the Quick Reaction Team and CWP No.19503 of 2008.doc - 2 – demonstrating exemplary bravery, valour and rare courage, he successfully saved the lives of hundreds of civilians/passengers who were present at the Jammu Railway Station. Two of the terrorists were killed by Lieutenant Triveni Singh single-handedly, who unfortunately also suffered fatal injuries at the hands of the militants and made the supreme sacrifice by laying down his life. In recognition thereto, Lieutenant Triveni Singh was awarded “Ashoka Chakra” (Posthumously) on 25.01.2004. (3). The Deputy Commissioner, Gurdaspur verified the facts and sent a report dated 09.05.2008 (Annexure R1) to the State Government stating that Lieutenant Triveni Singh has left behind his father, who is a retired Captain of the Indian Army; his mother Smt. Pushpa Lata (housewife), a married sister Smt. Pooja Singh (housewife) and another unmarried sister, namely, Ms. Jyotsna Singh. The said report further certifies that Lieutenant Triveni Singh was unmarried and his sister Jyotsna Singh was dependent upon her father and brother, namely, Lieutenant Triveni Singh. (4). The petitioner has averred that at a solemn function of “Shaheedi Samaroh” held in the honour of the Martyr Lieutenant Triveni Singh, the Chief Minister of CWP No.19503 of 2008.doc - 3 – Punjab publicly announced that the next kin/dependent of Lieutenant Triveni Singh shall be given suitable appointment as an ‘honour and gratitude’ towards the brave soldier. Since the assurance did not materialize, the petitioner started representing the authorities for appointment of his unmarried daughter Jyotsna Singh to a Class-I post. Considering the facts verified by the District Administration that Jyotsna Singh was dependent on her deceased brother also, a High Powered Committee headed by the Chief Secretary, Punjab in its meeting held on 13th June, 2005 recommended for appointment of Jyotsna Singh to the Punjab Civil Services (Executive Branch). The recommendations of the High Powered Committee were, however, shot down by the Department of Personnel who put up a factually incorrect and misleading administrative note that “Jyotsna Singh is dependent upon her parents… ….” (5). The office note put up by the Department of Personnel got mechanical approval from the competent authority, causing great embarrassment to the petitioner and giving rise to these proceedings. CWP No.19503 of 2008.doc - 4 – (6). The respondents have filed their reply/affidavit dated 31.03.2009 wherein the recommendations of the Deputy Commissioner, Gurdaspur regarding partial dependency of Jyotsna Singh on her deceased brother; the recommendations dated 13th June 2005 made by the High-Powered Committee headed by the Chief Secretary, Punjab as also the contents of the objection raised by the Department of Personnel have been admitted and reproduced also. (7). Since the objection raised by the Department of Personnel was essentially on the premise that Ms. Jyotsna Singh was living with her parents at Pathankot and was dependent upon them only and not on her deceased brother, the petitioner has pointed out that in the cases of (i) Sharmila Devi sister of late Sepoy Mukesh Singh; (ii) Anita Devi sister of late Devinder Singh; (iii) elder brother of Shaheed Captain Arun Jasrotia (AC); (iv) Rekha Devi sister of Sepoy Ganesh Kumar etc. etc. have been appointed under the ex gratia policy by treating them as dependents on their deceased brothers but Jyotsna Singh has been treated differently in a totally discriminatory manner. CWP No.19503 of 2008.doc - 5 – (8). The respondents filed yet another reply/affidavit dated 24.05.2010 admitting these appointments, especially in the case of Rakesh Singh Jasrotia brother of late Captain Arun Jasrotia who too is an “Ashoka Chakra” awardee. The affidavit dated 24.05.2010 (relevant extracts) reads as follows:- “It is most respectfully submitted that the policy of the Government of Punjab for providing appointments by way of Honour and Gratitude to one dependent member of a War Hero/Martyr came into existence with effect from 1.1.1999 whereas Sh. Rakesh Singh Jasrotia brother of late Capt. Arun Singh Jasrotia, Ashok Chakra, Sena Medal was given appointment of Junior Engineer in the Department of Irrigation and Power in the year 1997, as cited by the petitioner in the instant case.” (9). In order to find out as to how many appointments on compassionate grounds, whether under the State Government’s ex gratia policy or otherwise, had been made in the past, this Court vide order dated 16.08.2010 sought the following details :- “i. all those appointments made against Class-I and Class-II posts under the orders of the Council of Ministers and/or otherwise, of the children of administrative/ police/judicial/other officers who were the victims of terrorism in the State of Punjab; and ii. all those appointments against Class-I and Class- II posts which have been made under the ex gratia policy.” CWP No.19503 of 2008.doc - 6 – (10). In deference thereto, the respondents have filed an additional reply/affidavit dated 05.10.2010 admitting that 24 appointments to Class I posts have been made under “special circumstances due to terrorist attacks on their family members or under the policy for honour and gratitude to the war heroes”. The affidavit further discloses the number of appointments made against Class-I and Class-II posts in various Departments of the State Government, a gist of which is extracted below:- Sr.No . Total No. of appointments made In the Department/ Office of Against Class- I or Class-II post 1. TWO Financial Commissioner Class-II 2. ONE Transport Department Class-II 3. ONE State Transport Commissioner Deptt. Class-II 4. TWO Tourism & Cultural Affairs Department Class-II 5. TWO Cooperation Department Class-II 6. ONE Public Relation Department Class-II 7. FOUR Employment Generation Class-II 8. SIX Food & Civil Supplies Department Class-II 9. FOUR Department of Home Affairs and Justice Class-II 10. ONE PWD (B&R) Department Class-I (11). In addition, 19 more appointments on Class–I posts in the Department of Excise and Taxation have been made, most of whom are the family members of the CWP No.19503 of 2008.doc - 7 – War Heroes and/or victims of terrorist attack. The following is the list of the appointees against Class I post in the Excise and Taxation Department as furnished along with above-stated affidavit:- SNo . Name Sarv Sh/Smt. Year of Appoint -ment Remarks/ Relation with Terrorist victim/ War Hero Post Offered Class I Class II 1. Rajwinder Kaur 1999 Wife of War Hero Cap. Mandeep Singh Class I 2. Ramanpreet Kaur Dhaliwal 1999 Wife of War Hero Major JDS Dhaliwal Class I 3. Darveer Raj 1999 Wife of War Hero Deputy Commandant Mohinder Raj Class I 4. Rajwinder Kaur Bajwa 2001 Wife of War Hero Major BS Bajwa Class I 5. Deepinder Singh Garcha 2001 BROTHER of War Hero Cap. Rupinder Singh Garcha Class I 6. Maninderdeep Kaur 2001 Sister of War Hero Sepoy Gurbax Singh Class I 7. Anita Devi 2001 Sister of War Hero Sepoy Devinder Singh Class I 8. Daljit Kaur 2001 Daughter of War Hero Naib Subedar Gian Singh Class I 9. Jatinder Kaur 2006 Wife of War Hero Capt. Roobinderdeep Singh Class I 10. Krian Vinayak 2008 Wife of War Hero Kapil Vinayak Class I 11. Manreet Rana 2009 Wife of War Hero Col. Amandeep Singh Class I 12. Sushma Kumari 1988 Wife of Terrorist victim Dr. Rajesh Kumar Class I 13. Harinder Pal Singh 1991 Son of Terrorist victim Gian Singh Class I 14. Saroj Garg 1994 Wife of Terrorist Victim Dr. Ramesh Kumar Garg Class I 15. Urvashi Goel 1994 Wife of Terrorist Victim Amandeep Goel Class I 16. Hardeep Kaur 1995 Daughter of Terrorist victim Mohinder Singh Class I CWP No.19503 of 2008.doc - 8 – (12). The affidavit further discloses that six more appointments against Class II posts have been made in the Department of Food and Civil Supplies including that of Atinder Kaur – sister of War Hero Sepoy Sandeep Singh. (13). There are indeed not one but several instances of appointments of their sisters and brothers in the honour and gratitude of the War Heroes against Class-I and Class-II posts. (14). Learned counsel for the parties have been heard in the light of these admitted facts and the records have been perused. (15). Broadly, there are four issues which arise for consideration i.e. (i) Are the respondents justified to apply the criteria given in the ex gratia policy for appointment of the dependents of the Government employee to a Civil Post who died in harness, in the instant case? (ii) Whether the criteria of ‘dependency’ has any bearing while making appointments in the ‘honour and gratitude’ towards the War Heroes? (iii) Is it correct that the petitioner’s daughter Jyotsna Singh was partly dependent upon on her brother Lieutenant Triveni Singh? (iv) Can the impugned action sustain on the touchstone of Articles 14 and 16 of the Constitution? CWP No.19503 of 2008.doc - 9 – (16). In my considered view, the solitary object behind giving appointment as a mark of ‘honour and gratitude’ to a War Hero is not to provide a source of sustenance to his dependent family member(s) as it generally happens in the case of death of a Government employee. It is more an expression of gratitude by a thankful Nation for the sacrifice made by a War Hero. Such like measures lessen the psycho-fear amongst the youth and further encourage them to join the Army and fill the Army personnel with a sense of extreme security. The factor or factum of dependency is alien and irrelevant to such like extraordinary decisions taken to meet out extraordinary situations. The action of the Department of Personnel in applying the ‘principle of dependency’ in the instant case is, thus, per se arbitrary and wholly misconceived. (17). The ex gratia policy or its criteria as applicable in the case of a Government employee who dies in harness, cannot be applied in the present case as the petitioner never sought the appointment of his daughter under any such Policy. He has simply sought parity in the matter of ‘honour and gratitude’, towards his son Lieutenant Triveni Singh who made the supreme sacrifice for his motherland. The Department of CWP No.19503 of 2008.doc - 10 – Personnel ought not to have mixed up two different policies while putting up the case of the petitioner’s daughter for appointment as an expression of ‘honour and gratitude’ towards Lieutenant Triveni Singh. (18). Moreover, there was no contrary material whatsoever on the record of the Department of Personnel on the basis of which the report/recommendations made by the Deputy Commissioner, Gurdaspur could be discarded. The said Department ought not to have acted on surmises to mislead the competent authority that the petitioner’s daughter was solely dependent upon her parents. As noticed earlier, the mother of Jyotsna Singh is a housewife whereas her father is a retired Army personnel whose only source of livelihood appears to be his pension. The petitioner’s son was admittedly a young unmarried Officer and obviously must be financially assisting his family, including his unmarried sister. The Deputy Commissioner, Gurdaspur was factually right in concluding that the daughter of the petitioner was partly dependent upon her deceased brother. (19). In view of the fact that the policy for appointment as an expression of ‘honour and gratitude’ to the War Heroes is altogether different from the ex gratia policy applicable in the case of ordinary death of a CWP No.19503 of 2008.doc - 11 – Government employee while in service, I am of the considered view that the restriction on compassionate appointments against Class III and IV posts only as ruled by the Hon’ble Supreme Court in Umesh Kumar Narang v. State of Haryana, (1994) 4 SCC 138 would not be attracted to an appointment in the ‘honour and gratitude’ of a War Hero nor the respondents themselves have applied such restriction while making several appointments in the past. (20). For the reasons stated above, it is held that the action of the respondents in denying appointment to the petitioner’s daughter is patently arbitrary, discriminatory and cannot sustain in law or equity. (21). The writ petition is accordingly allowed and the respondents are directed to offer appointment to Ms. Jyotsna Singh against any suitable Class-I or Class-II post keeping her academic and other qualifications in view, within a period of three months from the date of receipt of a certified copy of this order. (22). Ordered accordingly. Dasti. 06.10.2010 vishal shonkar (SURYA KANT) JUDGE