CWP No. 23198 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 23198 of 2010 Date of Decision: July 13, 2011 Gurkirat Singh Dhillon …Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. M.P. Goswami, Advocate for the petitioner. Mr. Suvir Sehgal, Addl. A.G., Punjab for the respondents-State. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The petitioner claims to be dependent of War Hero who is said to have died in action on 21.06.1995, when he was posted in operation OP Rakshak (J&K). He was classified as battle casualty as per Army Headquarters letter dated 28.06.1995 (P-1). The petitioner claimed that his father late Col. H.S. Dhillon has earned martyrdom. The petitioner has passed his Bachelor of Engineering from Punjab Technical University in May 2001 (P-2) and has also acquired the degree of Master of Business Administration from Delhi University in the year 2005 (P-3). 2. The petitioner claims the benefit of policy dated CWP No. 23198 of 2010 -2- 19.08.1999 (Annexure P-4A, P-4B and P-4C), which contemplates of appointment of honour and gratitude in the State Class-I, Class-II, Class-III and Class-IV services but has confined the benefit of those war heroes, who have died on or after 01.01.1999. However, the petitioner made request to the respondent-State by representing on 02.08.2009, 24.03.2001, 09.11.2008 and 13.07.2010 (Annexure P-7, P-8, P-9 and P-10 but his representation was rejected by observing that the Government was unable to agree to his request for giving the benefit because his father attained martyrdom on 21.06.1995, which is prior to 01.01.1999 as provided by the policy (P-11). Consequently, the instant petition has been filed challenging the cut- off date on the anvil that one unified class of martyrs is sought to be bifurcated by unrealistic classification, which is based on fixing an arbitrary date i.e. 01.01.1999. 3. In response to the notice of motion having been issued, the respondents have filed the reply. The stand taken by the respondents-State in the preliminary objection no.1 is that according to the policy dated 19.08.1999 as notified on 24.09.1999 (Annexure R-1 and R-2 respectively), the Government has defined 'War Hero' to mean a defence services personnel or a Para-Military forces personnel who is killed or discharged from his service on account of disability suffered by him by fighting a war declared by Government of India in operations in Kargil or any other sector in Jammu and Kashmir in the ongoing conflict with Pakistan as may be notified by the State Government for preserving the unity and integrity of the CWP No. 23198 of 2010 -3- Country on or after 01.01.1999. Therefore, the objection is taken that since the father of the petitioner attained martyrdom on 21.06.1995, he was not covered with policy and the definition of War Heroes adopted in the policy. Another submission made in para 3 of the preliminary objection is that vide letter dated 12.11.2002 (Annexure R-3), the Defence Service Welfare, Department has clarified that the dependents of War Heroes pre Kargil Operation cannot be considered at par with the Kargil War Heroes. The aforesaid para from the instructions has been relied upon, which reads as under: “It is observed that the dependents of the War Heroes of 1962, 1965 and 1971, certainly, have settled with the means of livelihoods with the Military Services benefits to the deceased or disabled War Heroes. They must have availed benefits under different Govt. schemes. Accordingly, their eligibility and suitability for compassionate appointments can not be considered at par with the 'Kargil War Heroes'. Moreover, the judgment orders of the Hon'ble Supreme Court of India in the case of Umesh Kumar Nagpal Vs State of Haryana and others (1994) & SC Cases (138) interalia provide that compassionate appointments cannot be granted after a lapse of reasonable period. Moreover, 40 years since 1962 is a pretty CWP No. 23198 of 2010 -4- long period in the time horizon for framing a policy for its effectiveness. Hence, the Government regrets its inability to accede the proposal. This issues with the approval of the Chief Minister.” 4. Mr. M.P. Goswami, learned counsel for the petitioner has vehemently argued that the cut-off date 01.01.1999 for considering the killed members of the Army Forces as War Heroes is illegal and it flagrantly violates the mandate of Article 14 and 16(1) of the Constitution. In support of his submission, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered0 in the case of D.S. Nakara and others v. Union of India (1983) 1 SCC 305 and submitted that if a cut-off date bifurcates one class of beneficiary like the one in D.S. Nakara's case (supra) then such a clause has to be declared as ultra vires of the Constitution. According to the learned counsel, by fixing and arbitrary date of 01.01.1999, those who are dependents of War Heroes of 1998, 1997, 1996, 1995 and 1994 would be deprived of the benefit, which is wholly unwarranted because the basic object of framing the policy is to confer the benefit on the dependent/ member of the family who has made supreme sacrifice of his live for saving the motherland. Therefore, it has been prayed that the arbitrary date of 01.01.1999 be declared discriminatory and ultra vires of Article 14 and 16(1) of the Constitution and the War Heroes who have died earlier including the father of the petitioner may be CWP No. 23198 of 2010 -5- declared as War Heroes and their dependents like the petitioner be given benefits of the policy. 5. Mr. Suvir Sehgal, learned Addl. A.G., Punjab has pointed out that the policies of the State are framed keeping in view the various factors which may include the financial constraints, the number of beneficiaries who are likely to be given protection and host of other factors. According to the learned State counsel, for the aforesaid purpose, a date is always required to be fixed failing which a flood gate of beneficiaries would open which would be wholly unmanageable and those who deserve to be given the benefit of the policy may be deprived of the benefit and those who are not entitled may end up getting the benefit. Mr. Sehgal has maintained that the judgment in D.S. Nakara's case (supra) has been considerably watered down as observed by Hon'ble the Supreme Court rendered in the case of State of Punjab v. Amar Nath Goyal and others (2005) 6 SCC 754; Government of Andhra Pradesh and others v. N. Subbarayudu and others (2008) 14 SCC 702 and Transport and Dock Workers Union and others v. Mumbai Port Trust and another (2011) 2 SCC 575. 6. Having learned counsel for the parties, we are of the considered view that the respondents-State has framed laudable policy recognising the sacrifices of those who laid down their lives for unity and integrity of the nation. The respondent-State cannot rope in the definition of War Heroes everyone fixing no cut-off date. If no such date is to be provided then it may result into complete CWP No. 23198 of 2010 -6- failure of the policy and chaotic situation . On the one hand, the respondent-State may not be able to meet the financial aspect and on the other hand uncontrolled and unmanageable situation would prevail because in the absence of any cut-off date all the dependents of War Heroes would become eligible and entitled. The policy is targeting a small section by keeping in view probably its finance etc. It is well settled that when the State framed its policy, numerous factors are kept in view which include the economic position, financial constraints, administrative efficiency and various other attending circumstances. Infact, Hon'ble the Supreme Court has opined that such a cut-off date cannot be declared arbitrary in the case of N. Subbarayudu (supra), which reads as under: “5. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab & Ors. Vs. Amar Nath Goyal & Ors., (2005) 6 SCC 754). CWP No. 23198 of 2010 -7- 6. No doubt in D.S. Nakara & Ors. vs. Union of India this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara’s Case (supra), as observed in para 29 of the decision of this Court in State of Punjab & Ors. vs. Amar Nath Goyal & Ors. (supra). 7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection. 8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar vs. Ramjee Prasad Union of Indian & Anr. vs. Sudhir Kumar Jaiswal (vide SCC para 5), Ramrao vs. CWP No. 23198 of 2010 -8- All India Backward Class Bank Employees Welfare Association & Ors. (Vide SCC Para 31), University Grants Commission vs. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result.” (Emphasis added) 7. Similar view has been expressed in paras 33 to 37 of the judgment of the Supreme Court Mumbai Port Trust's case (supra) and the learned State counsel has rightly drawn our attention to those paras 33 to 37. Even otherwise, it is well settled that the Court should be slow in interfering in the policy decision taken by the State. 8. For the reasons aforementioned, this petition does not merit admission and the same is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE July 13, 2011 Atul