IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18162 of 2008 DATE OF DECISION: July 06, 2009 Jaspreet Kaur .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Nirmal Singh, Advocate, for the petitioner. Mr. B.S. Chahal, DAG, Punjab. Respondent no. 5 ex parte. AJAI LAMBA, J. (ORAL) This civil writ petition has been filed by Jaspreet Kaur W/o Sandip Singh D/o Buta Singh, under Article 226 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order dated 07.07.2008 Annexure P-8, passed by respondent no. 4 i.e. District Education Officer, Elementary Education, Ludhiana. It has been pleaded that the order Annexure P-8 is contrary to the provisions of circular dated 27.11.2000 Annexure P-5 and circular dated 02.07.2001 Annexure P-6 issued by respondent no. 2 i.e. Principal Secretary, Department of General Administration, Punjab Civil Secretariat, Chandigarh. Learned counsel for the petitioner has pointed out that the petitioner has passed M.A. B.Ed. Being eligible and qualified for the post of Teaching Fellow advertised by respondent no. 3 vide advertisement C.W.P. No. 18162 of 2008 -2- dated 05.09.2007, applied for the same. The petitioner belongs to rural area and passed middle and matriculation examination as a regular student from a school located in rural area. Further the petitioner has three years of teaching experience on the post of Lecturer at Sikh Girls Senior Secondary School, Sidhwan Khurd (Ludhiana) which is affiliated to Punjab School Education Board, Mohali. It has been highlighted by learned counsel for the petitioner that the petitioner belongs to the category of Freedom Fighters being daughter's daughter “Dohtri” of a freedom fighter in which context certificate has been issued by Deputy Commissioner, Ludhiana, appended as Anneuxre P-3. It has been brought out that the respondents advertised 9998 posts of Teaching Fellows against JBT/ETT posts on 05.09.2007 in the State of Punjab. Out of the total posts, 1291 posts were advertised for Ludhiana district. 50% of the posts were reserved for male candidates and 50% were reserved for female candidates. Giving reservation to the wards of Freedom Fighters, 1% posts were reserved for the purpose. Resultantly, 13 posts fell to the share of wards of Freedom Fighters in District Ludhiana. Six posts from that category were segregated for male candidates and six for female candidates. One post was to be given to the candidate from the said category who would be higher in merit. Last date for submission of applications was 30.09.2007. The petitioner applied for the post in the category of Freedom Fighters in Ludhiana district and was allotted registration number 6243 by respondent no. 4. After verification, result of the candidates who applied for the posts in Ludhiana district was declared. The petitioner was shown at C.W.P. No. 18162 of 2008 -3- Sr. No. 5 in the category of Wards of Freedom Fighters with 59.702 marks/merit points. Objections were called from the candidates. Petitioner had a genuine grievance as she had not been awarded marks for experience. The objection was accepted and three marks for experience were awarded. Resultantly, the petitioner got 62.702 marks/merit points and was placed at Sr. No. 4 position in the category of Freedom Fighters and first amongst females from that category. On 31.03.2008 candidates i.e. including the petitioner were called for counseling. After counseling, the petitioner was shown at Sr. No. 2 in merit list in the category of Freedom Fighters. The list was duly displayed by respondent no. 4 on the notice board in the office. Learned counsel contends that when the result was published in the newspapers, the name of the petitioner did not figure. The petitioner got a legal notice served. Claim of the petitioner has been rejected vide order Annexure P-8 dated 07.07.2008 i.e. the impugned order. The relevant portion of the impugned order which is in response to para no. 5 of legal notice reads as under:- “Para no. 5 : As per the instructions issued by the Department of General Administration (Political 3 Branch), Punjab Govt. letter No. 16/57/97-8 B3/Spl.503, dated 27.11.2000, 1% reservation has been provided in the govt. services for the children, son's son/sons daughter and daughter's son/daughter's daughter of the Freedom Fighters. As per this the reservation to the children, son's son/son's daughter and daughter's son/daughter's daughter of the Freedom Fighters has C.W.P. No. 18162 of 2008 -4- been extended in their respective order.” (emphasis supplied) Learned counsel for the respondent-State has not disputed the facts as given out hereinabove. Learned counsel for the petitioner, in view of the above, has argued that the impugned order is clearly illegal, unreasonable, against the circular issued by the respondents, Annexure P-6 dated 02.07.2001 and, therefore, is liable to be quashed. Learned counsel has specifically referred to part/portion 1 of Annexure P-6 which reads as under:- “I have been directed to draw your attention to the letters of this department No. 16/57/97-8P3/Special-583, dated 27.11.2000 and No. 16/42/2000-8P3/Special-636-639, dated 27.12.2000. AS per these instructions 1% of reservation in Class 1, 2, 3 and 4 in the govt. services has been provided to the children, son's son/son's daughter and daughter's son/daughter's daughter of the Freedom Fighters/Struggling Warriors. In continuation of this, now the govt. has taken a decision that the matter regarding 1% reservation to the children, son's son/son's daughter (Potra/Potri) and daughter's son/daughter's daughter (Dohtra/Dohtri) of the Freedom Fighters and struggling warriors in the govt. services shall be considered on the basis of merits.” (emphasis supplied) Learned counsel for the respondent, to the contrary, has referred to the reply to contend that decision has been taken by the respondent in terms of instructions Annexures R-1 & R-2 and, therefore, is justified. C.W.P. No. 18162 of 2008 -5- I have considered the contentions of the learned counsel and have gone through the documents referred to by the learned counsel. A perusal of extracted portion of Annexure P-6 makes it evident that 1% reservation has been provided by the respondent-State to freedom fighters. Persons falling in the category for reservation for Freedom fighters are defined as the children of Freedom Fighters viz. son's son/son's daughter (Pohtra and Pohtri) and daughter's son/daughter's daughter (Dohtra and Dohtri), of the freedom fighters. Annexure P-6 further makes it clear that the said children would be considered on the basis of merit. The circular does not anywhere provide that the son's son and son's daughter shall be given preference over daughter's son and daughter's daughter. Merit having been made the criteria, the case of the petitioner clearly falls thereunder as the petitioner is highest in merit in district Ludhiana amongst girls under the Freedom Fighters quota. So far as reference to Annexures R-1 & R-2 is concerned, it is evident that the circulars do not even apply to the facts of the present case. Circular Annexure R-1 is dated 22.05.1989 and, therefore, earlier in terms of time vis a vis Annexure P-6. In any case, it only provides that sons and daughters of the freedom fighters be given preference for grant of various concessions and in case sons and daughters are not available, grand children of freedom fighters may be considered for the purpose. Annexure R-2 provides that 1% posts be reserved for children i.e. son's son, son's daughter and daughter's son, daughter's daughter of the freedom fighters. The circulars R-1 & R-2 do not anywhere specify that son's son and son's daughter are to be given preference over the children of daughters of freedom fighters. C.W.P. No. 18162 of 2008 -6- The stand taken by respondent no. 4 i.e. District Education Officer (Elementary Education), Ludhiana in the impugned order Annexure P-8 and in the written statement is to the effect that the son's son/son's daughter of Freedom Fighters and daughter's son/and daughter's daughter of Freedom Fighters are to be kept in sequence i.e. first preference is to be given to son's son of Freedom Fighter and then son's daughter. Thereafter to the daughter's son and then to daughter's daughter. The petitioner could not be selected because she comes last in the sequence, although higher in merit. As held hereinabove, Circulars Annexure R-1 and R-2 do not anywhere stipulate that the children would be considered in sequence i.e. vertically in order of their mention. Rather Annexure P-6, portion of which has been extracted above, makes it clear that the children of the freedom fighters shall be considered on the basis of merit. 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 daugher 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 C.W.P. No. 18162 of 2008 -7- 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 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 C.W.P. No. 18162 of 2008 -8- 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. 06.07.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the Reporters of not? 2. Whether the judgment should be reported in the Digest?