CWP No.6194 of 2009 : 1: In the Punjab and Haryana High Court at Chandigarh. Date of decision: 23.07.2009 Dr. (Major) Harsh Vivek Singh ... Petitioner Versus State of Punjab and another ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Vivek Sharma, Advocate,for the petitioner. Mr.PC Goyal, Addl.AG, Punjab. Mr.Ashish Rawal, Advocate, for Mr.Anupam Gupta, Advocate. -- PERMOD KOHLI, J. (Oral): Respondents chose not to file reply by making statement before Registrar Judicial No.1 as is evident from order dated 23.07.2009. I have heard the learned counsel for the parties. The petitioner joined Indian Army on a post of Doctor in the the Army Medical Corps after acquiring the degree of MBBS in the year 2002. He was given the rank of Captain. Later, the petitioner came to be promoted as Major. The petitioner's recruitment was for a period of five years. On successful completion of five years tenure, the petitioner left the Army on 21.11.2008. It is stated that the petitioner, thus, acquired the status of an Ex-serviceman. The peitioner has also placed on record a certificate CWP No.6194 of 2009 : 2: issued by the District Sainik Welfare Officer, Shahid Bhagat Singh Nagar, Nawanshahr, dated 16.03.2009 (Annexure P-1). The State of Punjab issued notification dated 17.03.2008 (Annexure P-2) for admission to Post Graduate Degree/Diploma Courses Session 2008 onwards. Respondent No.2 was appointed as the agency to conduct the Entrace Test for admission to the aforesaid various degree courses. As per the written criteria, 50 per cent of the total seats in government Institutions were earmarked to be filled on all India basis through an All India Competitive Entrance Test. The remainaing seats shall be filled through the Post Graduate Entrance Test. Out of the remaining seats, 60% seats shall be filled up from amongst the eligible PCMS/PCMS (Dental)/PDES in service doctors and 40% shall be open to all eligible medical/dental graduates. As many as three seats were advertised in defence category. The petitioner who belongs to the defence category, filled up the form and participated in the PGET-2009 against 40% quota reserved for medical graduates. The entrance test was held on 05.04.2009. The result of the same was declared on 07.04.2009. The petitioner secured 536 marks and he ranked 5th in the 40 per cent quota under defence category with Code 23 for serving/retired defence personnel. The respondents, however, denied the admission to the petitioner on the ground that he is not the ward of Ex-serviceman. As per advertisement 3 seats are meant for defence category in 60 % PCMS quota. But in 60% PCMS quota only one candidate has cleared the written test. Thus, two remaining seats have to be shifted to the share of 40% Medical Graduate Category. The detailed chart of preference has been given by the respondents to fill up the CWP No.6194 of 2009 : 3: seats in the order of preference in the defence category in the following manner:- “a) Killed in action. b) Disabled in action to the extent of 50% or above & Boarded out of service. c) Died while in service & Death attributed to Military service. d) Disabled in service & Boarded out with disability attributed to Military Service. e) Gallantry Award/ other Award Winners both serving/retired. f) Serving/Retired Defence personnel/Ex- Servicemen.” The petitioner falls in last category (f). The question whether the defence personnel himself is eligible under the aforesaid category has been considered by this Court in the case of Kamal Sachdeva Vs. Baba Farid University of Health Sciences & another, CWP No.7794 of 2008, decided on 17.11.2008, wherein the right of the Ex-serviceman has been acknowledged and he has been considered to be eligible. In view of the above, the petitioner is eligible as Ex-serviceman for admission to the Post Graduate Course. It is contended on behalf of the respondents that in the preferential order notified for reservation for defence category, the wards of defence personnel are to get preference as against the defence personnel himself. In my opinion such an approach is totally irrational and illogical. Ward of a defence personnel becomes entitle to benefit because of his/her CWP No.6194 of 2009 : 4: parents being a lineal descendant then how can ward steal a march over the defence personnel himself. It should be other way around if defence personnel himself is competing as against a ward of any defence personnel, he/she has to be given precedence over the ward. Learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Apex Court in the case of Dilwan Singh and others etc. etc. Vs. State of Haryana and others etc. etc., 1996 (2) RSJ, 514, wherein the Hon'ble Supreme Court has considered the question whether the benefit of an Ex-serviceman should be available to the Ex-serviceman at the first instance as against the dependents of the Ex-servicemen. On such consideration, the Hon'ble Supreme Court made the following observations:- “It is contended by Shri Mahabir Singh, learned counsel for the appellants that the Selection Board has adopted a policy of calling the ex-servicemen and the dependent children of the ex-servicemen together to consider their cases for recruitment according to merit which would stand an impediment to the ex-servicemen. We find force in the contention. The objection of reservation of the ex-servicemen is to rehabilitate them after their discharge from the defence services. As per the instructions issued by the State Government, in the absence of availability of the ex-servicemen CWP No.6194 of 2009 : 5: instead of keeping those posts unfilled, the dependent children, namely, son or daughter of ex- servicemen would also to be considered. The object thereby would be that the Selection Board should first consider the claims of the ex- servicemen and have their eligibility considered independently in the first instance before the claims of the dependent children of the ex- servicemen are considered. If they are found eligible and selected, for the balance unfilled posts, the selection should be done from among the dependent children of the ex-servicemen.” From the dictum of the aforesaid judgment, it is clear that the Ex-serviceman cannot be placed in disadvantageous position than their wards. Rather they should be considered first for the benefit in preference to their wards. In view of the above, the condition in the notification dated 17.03.2008 (Annexure P-2) which provides for preferential treatment to the wards of the Ex-servicemen is liable to be modified. It is accordingly directed that where Ex-serviceman himself is a candidate and reservation is provided for Ex-serviceman, he/she shall be considered at the first instance in preference to the wards of Ex-serviceman. In the present case, admittedly, the petitioner has better merit but on account of the preference provided under the notification, the petitioner has been put to disadvantageous position. For the reasons recorded above, this petition is allowed and it is CWP No.6194 of 2009 : 6: directed that the petitioner who is an Ex-serviceman shall be considered at the first instance in preference to the dependent wards of the Ex-servicemen in the Ex-Serviceman category against the earmarked quota and if on such consideration, the petitioner is found to have made the merit, he will be admitted to the course in question in accordance with law. Vide interim order dated 24.04.2009, the petitioner was permitted to join the counseling provisionally. It was further directed that the result of the petitioner shall be kept in a sealed cover till the next date of hearing. In view of the aforesaid direction, the respondents have kept the result of the counseling undertaken by the petitioner in a sealed cover as informed by Mr.Rawal today in Court. In view of the fact that the petitioner is eligible under law, the respondents are directed to open the sealed cover and if the petitioner has attained the requisite merit for admission to the Post Graduate Course, he may accordingly be admitted to the course in question in accordance with law. 23.07.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES